People v. Gallegos CA2/4 ( 2016 )

Filed 4/25/16 P. v. Gallegos CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B264707
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA082091)
v.
MICHAEL A. GALLEGOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Richard A. Stone, Judge. Affirmed.
Laini Millar Melnick, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Michael A. Gallegos appeals from the denial of his petition to recall his
sentence under Proposition 47 (Pen. Code, § 1170.18),1 which reduced certain
theft-related and drug-related felonies to misdemeanors.2 Appellant’s counsel on
appeal filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436 (Wende))
requesting that we conduct an independent review of the record. We have done so
and conclude that no arguable issues exist. Accordingly, we affirm.
BACKGROUND3
Appellant was sentenced to a term of five years for second degree
commercial burglary (§ 459), to be served concurrently with a term imposed for
possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). In
December 2014, appellant filed a petition under section 1170.18 to reduce his
burglary and controlled substance convictions to misdemeanors. Appellant also
filed a petition for writ of habeas corpus seeking reduction of his convictions to
misdemeanors and resentencing under Proposition 47.
On January 2, 2015, the trial court granted appellant’s petition under section
1170.18 to reduce the controlled substance sentence to one year, time served. On
March 23, 2015, the court denied appellant’s petition to reduce the burglary
1
Further unspecified statutory references are to the Penal Code.
2
“Section 1170.18 provides a mechanism by which a person currently serving a
felony sentence for an offense that is now a misdemeanor, may petition for a recall of that
sentence and request resentencing in accordance with the offense statutes as added or
amended by Proposition 47. (§ 1170.18, subd. (a).)” (T.W. v. Superior Court (2015) 236
Cal.App.4th 646, 649, fn. 2.)
3
The record does not contain a preliminary hearing transcript, probation report, or
any other document setting forth the facts of the underlying convictions.
2
conviction on the ground that the establishment was “only open to the people who
rent the facility” and thus was not open during regular business hours.4
In May 2015, appellant filed a “petition for appeal,” arguing that the court
erred in denying his petition to reduce the burglary conviction. On July 10, 2015,
the trial court issued a minute order denying appellant’s petition for writ of habeas
corpus. On September 16, 2015, the court issued another minute order, stating that
it had “read and considered” a letter submitted by appellant apparently raising the
sentencing issue again. The court explained that, “when two sentences are served
concurrently, and one sentence is vacated for any reason, the second sentence
remains in full force and effect. The second sentence must be served even if the
first sentence is not served. Concurrent sentences frequently have different
lengths.” The court stated, “This is why defendant remains in custody even though
one of his two sentences is completed.”
DISCUSSION
After review of the record, appellant’s court-appointed counsel filed an
opening brief asking this court to review the record independently pursuant to the
holding of Wende. On November 9, 2015, we advised appellant that he had 30
days within which to submit any contentions or issues that he wished us to
consider. No response has been received to date.
4
Under Proposition 47, second degree burglary can be reduced to shoplifting,
which is defined as “entering a commercial establishment with intent to commit larceny
while that establishment is open during regular business hours, where the value of the
property that is taken or intended to be taken does not exceed nine hundred fifty dollars
($950).” (People v. Contreras (2015) 237 Cal.App.4th 868, 890, italics added.)
3
We have independently reviewed the record and conclude that there are no
arguable issues on appeal. (See Wende, supra, 25 Cal.3d at pp. 441–442; see also
Smith v. Robbins (2000) 528 U.S. 259, 278-279 [upholding the Wende procedure].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
COLLINS, J.
4