Filed 4/12/16 P. v. Rush CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E063784

v. (Super.Ct.No. SWF1102460)

ROBERT PATRICK RUSH, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Reversed with directions.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Fraser,

and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.

1 After pleading guilty to 14 crimes, defendant and appellant Robert Patrick Rush

filed a petition for resentencing under Proposition 47, The Safe Neighborhoods and

Schools Act (Proposition 47). Although the petition sought resentencing only on a count

of methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)), the trial court

denied his petition on the ground that none of the crimes to which petitioner pled guilty

qualified for resentencing under Proposition 47. Defendant now appeals the denial of his

resentencing petition. The People concede the trial court erred in finding the count for

methamphetamine possession was not eligible for resentencing but ask us to remand the

matter for a determination of whether defendant meets other criteria for resentencing.

Defendant does not oppose this procedure. We therefore reverse and remand for a new

hearing on defendant’s eligibility for resentencing under Proposition 47.

FACTUAL AND PROCEDURAL BACKGROUND

The People charged defendant with 14 separate counts, some felonies and some

misdemeanors. On January 30, 2013, defendant pled guilty to each of these counts. The

trial court sentenced him to nine years in state prison.

Defendant filed a petition for resentencing under Proposition 47 on December 23,

2014. The People filed responses indicating that defendant was not eligible for

resentencing on his other felony counts, but that he was eligible for resentencing on the

methamphetamine possession count. With respect to that count, it waived presence at the

resentencing hearing and agreed that resentencing may occur. On April 24, 2015, the

2 trial court denied the resentencing petition, indicating, “None of defendant’s convicted

counts 1-14 are qualifying felonies.”

ANALYSIS

Proposition 47 added section 1170.18 to the Penal Code. Subdivision (a) of that

statute reads: “A person currently serving a sentence for a conviction, whether by trial or

plea, of a felony or felonies who would have been guilty of a misdemeanor under the act

that added this section (‘this act’) 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 in accordance with Sections 11350,

11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496,

or 666 of the Penal Code, as those sections have been amended or added by this act.”

However, resentencing is not available to defendants “who have one or more prior

convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of

subdivision (e) of [Penal Code] Section 667 or for an offense requiring registration

pursuant to subdivision (c) of [Penal Code] Section 290.” (Pen. Code, § 1170.18,

subd. (i).)

The People concede that defendant’s conviction for possession of

methamphetamine (Health & Saf. Code, § 11377, subd. (a)) is eligible for resentencing.

We agree, since that statute is expressly enumerated in the list of felonies contained in

subdivision (a) of Penal Code section 1170.18. The trial court erred in concluding

otherwise.

3 Still, we agree with the People that the proper remedy is not a remand with

instructions to the trial court to grant defendant’s resentencing petition. The record

before us does not show that defendant lacks a conviction or multiple convictions for a

disqualifying felony or felonies. (Pen. Code, § 1170.18, subd. (i).) We therefore reverse

the trial court’s denial of defendant’s petition for resentencing under Proposition 47, and

remand for a new hearing on the petition.

DISPOSITION

The denial of defendant’s petition for resentencing is reversed. The trial court is

to conduct a new hearing on the petition in accordance with this opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.

4