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People v. Diaz

California Court of Appeals, Second District, Fourth Division

July 28, 2015

THE PEOPLE, Plaintiff and Respondent,
v.
ROBERT M. DIAZ, Defendant and Appellant.

[CERTIFIED FOR PARTIAL PUBLICATION [*]]

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA404022, Craig E. Veals, Judge. Affirmed.

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COUNSEL

Sarvenaz Bahar, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

WILLHITE, J.

A Los Angeles Superior Court jury convicted defendant Robert M. Diaz of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)).[1] He admitted one prior strike conviction (§§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d)), and two prior prison terms (§ 667.5, subd. (b)). The superior court sentenced him to a term of six years in prison, including one year for each of his two prior prison terms under section 667.5, subdivision (b). The prior felony conviction underlying one of the section 667.5, subdivision (b) enhancements was a 2009 conviction in San Bernardino County under former section 666, commonly called petty theft with a prior.[2]

While defendant’s present appeal from the judgment was pending, California voters approved Proposition 47, “The Safe Neighborhoods and Schools Act.” As here relevant, Proposition 47 reduced certain nonserious, nonviolent felonies, including petty theft with a prior, to misdemeanors, and provided a procedure under section 1170.18, subdivision (f), et. seq., for persons who

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have completed a felony sentence for such an offense to apply for reclassification of the conviction as a misdemeanor.

Defendant contends that his 2009 felony conviction of petty theft with a prior would be a misdemeanor if Proposition 47 had been in effect at the time of that offense, and that therefore it cannot be the basis of an enhancement of his sentence under section 667.5, subdivision (b). In the published portion of our opinion, we conclude that defendant’s contention that Proposition 47 compels the striking of his section 667.5, subdivision (b) enhancement is premature. Defendant must first file an application in the court of conviction under section 1170.18, subdivision (f) to have his 2009 conviction designated as a ...


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