People v. Festag CA3

DISCUSSION

The underlying facts of defendant’s crimes are irrelevant to the issue on appeal. It suffices to say that defendant was convicted of felony drug possession for conduct that cannot now be charged as felonious. Proposition 47 added section 1170.18, which in part provides that a person who is “currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section . . . had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . .” (§ 1170.18, subd. (a).) Asserting he is not disqualified from resentencing, defendant asks us to remand the case to the trial court with directions to recall the sentence and hold a resentencing hearing pursuant to section 1170.18. We recently concluded, however, that a defendant who may potentially benefit from retroactive application of Proposition 47 is limited to the statutory remedy of petitioning for recall of sentence in the trial court after the judgment has become final. (People v. Noyan (2014) 232…