People v. Hall CA4/2

Filed 2/16/16 P. v. Hall 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E063894

v. (Super.Ct.No. RIF1101887)

ALFONSO DANIEL HALL, OPINION

Defendant and Appellant.

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

Affirmed.

Kendall Dawson Wasley, under appointment by the Court of Appeal, for

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

This is defendant and appellant Alfonso Daniel Hall’s second appeal. This current

appeal stems from an order of the trial court partially denying defendant’s petition to

1 recall his sentence and for resentencing under Penal Code section 1170.18.1 We find no

error and will affirm the order.

I

FACTUAL AND PROCEDURAL BACKGROUND2

Beginning in November 2010, defendant committed a string of armed robberies

throughout Riverside and San Bernardino counties, taking between $60 to $3,000.

Defendant was eventually apprehended on March 17, 2011, after robbing at gunpoint

employees of a Best Western Hotel, and taking $1,038. Defendant admitted to the

investigating officers that he had robbed the Best Western Hotel, and also admitted to

committing other robberies throughout two counties. Police investigation revealed that

defendant, sometimes acting alone and other times with an accomplice, robbed

employees of numerous small businesses and retail stores at gunpoint.

On July 12, 2011, a 59-count information was filed charging defendant with 22

counts of robbery (§ 211; counts 1-2, 5, 8, 14, 17, 20, 23-24, 27, 30, 34-35, 37-40, 46, 48,

51, 54, 58); two counts of attempted robbery (§§ 664/211; counts 11, 43); two counts of

assault with a firearm (§ 245, subd. (a)(2); counts 3, 31); 15 counts of being a felon in

possession of a firearm (§ 12021, subd. (a)(1); counts 4, 7, 10, 13, 16, 19, 22, 26, 29, 33,

1 All future statutory references are to the Penal Code unless otherwise stated.

2 The details of the underlying facts are not relevant to the issue on appeal; hence only a summary of the factual background will be provided. The summary of the factual background is taken from the preliminary hearing transcript, the probation report, and the reporter’s transcript of the change of plea hearing.

2 42, 45, 50, 53, 56); 16 counts of second degree burglary (§ 459; counts 6, 9, 12, 15, 18,

21, 25, 28, 32, 36, 41, 44, 47, 49, 52, 55); one count of grand theft exceeding $950

(§ 487, subd. (a); count 57); and one misdemeanor count of battery (§ 242; count 59).

The information also alleged that defendant personally used a firearm (§ 12022.53,

subd. (b), or § 12022.5, subd. (a)) within the commission of 19 robberies and two

attempted robberies; that defendant personally used a deadly weapon, to wit, a knife

(§ 12022, subd. (b)(1)) during the commission of one of the robberies (count 58); and

that a principal was armed with a firearm (§ 12022, subd. (a)(1)) during the commission

of two of the robberies (counts 37 & 38). The information further alleged that defendant

had suffered one prior serious conviction, to wit, a 2008 attempted residential burglary,

(§ 667, subd. (a)) and one prior serious and violent strike conviction, to wit, the same

2008 attempted residential burglary (§§ 667, subds. (c) & (e)(1), 1170.12, subd.(c)(1)).

On January 31, 2012, defendant pled guilty to all charges and admitted all

enhancement allegations. Defendant also admitted that he had previously been convicted

of a prior serious felony and a prior strike conviction.

On April 2, 2012, after the trial court denied defendant’s motion to dismiss his

prior strike conviction pursuant to section 1385, defendant was sentenced to a total term

of 117 years four months in state prison with credit for time served.

After defendant appealed, in an unpublished opinion, this court affirmed

defendant’s conviction. (See People v. Hall (Jan. 7, 2014, E056037) [nonpub. opn.].)

3  On November 4, 2014, voters enacted Proposition 47, entitled “the Safe

Neighborhoods and Schools Act” (the Act). It went into effect the next day. (Cal.

Const., art. II, § 10, subd. (a).) As of its effective date, the Act classifies as

misdemeanors certain drugand theft-related offenses that previously were felonies or

“wobblers,” unless they were committed by certain ineligible defendants. (§ 1170.18,

subd. (a).)

The Act also included a provision that allows certain offenders to seek

resentencing. Defendants who are serving a sentence for a felony that would have been a

misdemeanor had Proposition 47 been in effect at the time of the offense may file a

petition for recall of sentence. (§ 1170.18.)

On December 23, 2014, defendant filed a petition for resentencing under

section 1170.18, subdivision (a), as to the grand theft charge, believing the amount of

the stolen property was less than $950.

On April 22, 2015, the People filed a response, noting defendant was ineligible as

to counts 1 through 5 because those offenses were not qualifying felonies. The People

also indicated that defendant’s offenses in counts 6 and 9 for second degree burglary

were also ineligible because the loss of the stolen property exceeded $950. The People,

however, noted that defendant was eligible to be resentenced for his second degree

burglary offenses in counts 12, 15, 18, 21, 25, 28, 32, 36, 41, 44, 47, 49, 52, and 55. The

People further indicated that those offenses should be reduced to misdemeanors under

section 459.5 and that there should be no sentence change since those counts were

4 ordered to be stayed pursuant to section 654. No mention was made as to defendant’s

conviction for grand theft exceeding $950 (count 57).

On April 22, 2015, the trial court denied defendant’s petition as to counts 6 and 9

because the loss exceeded $950, and granted the petition as to counts 12, 15, 18, 21, 25,

28, 32, 36, 41, 44, 47, 49, 52, and 55.3 Defendant was thereafter resentenced in

accordance with the Act.

On June 23, 2015, defendant filed a notice of appeal, challenging the trial court’s

resentencing order. Defendant also requested a certificate of probable cause, which was

denied on June 24, 2015.

II

DISCUSSION

After defendant appealed, upon his request, this court appointed counsel to

represent him on appeal. Counsel has filed a brief under the authority of People v. Wende

(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a

statement of the case, a summary of the facts and potential arguable issues, and

requesting this court to conduct an independent review of the record.

We offered defendant an opportunity to file a personal supplemental brief, and he

has not done so.

3 No mention was made of count 57 (grand theft exceeding $950). Nonetheless, because the loss of the stolen property exceeded $950, defendant would be ineligible to be resentenced on count 57.

5  In appellate counsel’s brief before this court, counsel argues as potential issues

whether evidence in the probation report can support the trial court’s factual finding

required to deny the petition for counts 6 and 9; whether the amount of fines imposed at

the time of the original sentencing hearing on April 2, 2012, should be reduced after

counts 12, 15, 18, 21, 25, 28, 32, 36, 41, 44, 47, 49, 52, and 55 were reduced to

misdemeanors; whether the trial court erred when it failed to consider count 57; and

whether there is substantial evidence in the record to support a finding the value of the

stolen property exceeded $950.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the entire record for potential error and find no arguable error

that would result in a disposition more favorable to defendant.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J. We concur:

HOLLENHORST J.

CODRINGTON J.

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