People v. James CA2/3

P
Filed 7/7/21 P. v. James CA2/3
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


 THE PEOPLE,                                                   B308756

           Plaintiff and Respondent,                           (Los Angeles County
                                                               Super. Ct. No. A907548)
           v.

 MARVIN LEE JAMES,

           Defendant and Appellant.


     APPEAL from an order of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Affirmed.
     Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
     No appearance for Plaintiff and Respondent.
                      ——————————
     Marvin Lee James appeals from an order summarily
denying his petition to redesignate certain felony convictions as
misdemeanor offenses pursuant to Penal Code section 1170.18,
subdivision (f).1 We affirm.
      FACTUAL AND PROCEDURAL BACKGROUND
       On September 3, 2020, James filed a section 1170.18
petition, seeking to have three prior convictions for felonies
redesignated as misdemeanors. In the petition, James alleged
he had sustained a felony conviction and served a completed
sentence in each of the following cases: (1) in case No. A907548,
an April 8, 1987 conviction for possession of cocaine in violation of
Health and Safety Code section 11350; (2) in case No. A633825,
a November 8, 1985 conviction for vehicle theft in violation of
Vehicle Code section 10851; and (3) in case No. A195553, a
December 17, 1979 conviction for burglary in violation of section
459. James asserted each of these prior felony offenses qualified
for reduction to a misdemeanor under section 1170.18,
subdivision (f).
       On September 9, 2020, the People filed a one-page form
opposition to the petition. The People checked a box on the form
indicating James was ineligible for relief under section 1170.18
because his “current conviction” was for the offense of robbery in
violation of section 211. Robbery was not among the offenses
James had listed on his petition.
       On September 10, 2020, the trial court summarily denied
the petition. In a one-page minute order, the trial court stated it


      1Unless otherwise stated, all statutory references are to
the Penal Code.




                                 2
had “read and considered the defendant’s petition,” and the
“felony conviction is for an offense that does not qualify
under . . . section 1170.18[, subdivisions] (a) or (f).”
       On October 19, 2020, James filed a notice of appeal from
the order denying his section 1170.18 petition. The notice of
appeal received by this court included a copy of James’s petition
and the trial court’s minute order. It also included a one-page
document entitled “CRIMINAL-APPEALS-CARDEX,” which
reflected that, contrary to James’s statement that he was
convicted for possession of cocaine, he was sentenced for the
offense of robbery in case No. A907548.
       We appointed counsel to represent James on appeal. After
an examination of the record, appellate counsel filed an opening
brief which raised no issues and requested this court conduct an
independent review of the record pursuant to People v. Wende
(1979) 

25 Cal.3d 436

. On March 22, 2021, we advised James that
he had 30 days in which to submit a supplemental brief or letter
setting forth any contentions or arguments he wished for this
court to consider. James did not submit a supplemental brief.
                         DISCUSSION
       In 2014, California voters approved Proposition 47, the Safe
Neighborhoods and Schools Act. (People v. Page (2017) 

3 Cal.5th
1175

, 1179.) Proposition 47 “reduced the punishment for certain
theft- and drug-related offenses, making them punishable as
misdemeanors rather than felonies.” (Ibid.) Proposition 47 also
added section 1170.18, which permits an eligible person serving
a sentence for an enumerated theft or drug offense to petition
for recall of the sentence and resentencing. (§ 1170.18, subds.
(a), (b).) A person who has already completed a felony sentence
for an enumerated offense may petition to have the conviction




                                3
redesignated as a misdemeanor. (§ 1170.18, subds. (f), (g).) In a
petition for relief under section 1170.18, the “ultimate burden
of proving . . . eligibility lies with the petitioner.” (People v.
Romanowski (2017) 

2 Cal.5th 903

, 916.)
       With respect to case No. A907548, James was ineligible for
section 1170.18 relief. The record reflects that James’s conviction
in that case was for robbery in violation of section 211. Robbery
is not one of the theft-related offenses for which a petitioner may
seek redesignation or resentencing under section 1170.18.
(§ 1170.18, subd. (a).) Accordingly, the trial court properly
denied James’s petition as to case No. A907548.
       With respect to cases Nos. A633825 and A195553, the trial
court’s order denying the petition did not include a ruling on
whether James was eligible for relief in either of these cases.
The September 10, 2020 minute order only identified case
No. A907548 in the caption of the document, and while it
included a reference to the robbery conviction in that case, it was
silent as to the convictions in the other two cases that James
sought to have redesignated as misdemeanors.2 Therefore, for
purposes of this appeal, we express no opinion as to whether
James was eligible for section 1170.18 relief in cases


      2 The record on appeal does not reflect whether the trial
court may have issued separate orders for each of the cases that
were the subject of James’s petition, or whether it inadvertently
failed to address James’s eligibility for relief in each case in its
September 10, 2020 minute order. If the trial court failed to
issue a ruling for cases Nos. A633825 and A195553, then no
appealable order as to those two cases currently exists. (See
§ 1237, subd. (b) [appeal may be taken from “any order made
after judgment, affecting the substantial rights of the party”].)




                                  4
Nos. A633825 and A195553. We hold only that James was not
eligible for such relief in case No. A907548.
       We have examined the entire record, and are satisfied
appellate counsel has fully complied with his responsibilities
and no arguable issue exists in the appeal before us. (Smith v.
Robbins (2000) 

528 U.S. 259

, 278; People v. Kelly (2006) 

40
Cal.4th 106

, 119; People v. Wende, supra, 25 Cal.3d at p. 441.)
                         DISPOSITION
     The trial court’s September 10, 2020 order denying Marvin
Lee James’s Penal Code section 1170.18 petition as to case
No. A907548 is affirmed.
     NOT TO BE PUBLISHED.



                                          THOMAS, J.*

We concur:



             EDMON, P. J.



             EGERTON, J.




      *Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.




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