Filed 4/29/15 P. v. Marquez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E062430
v. (Super.Ct.No. FSB1403405)
GABRIEL MARQUEZ, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant, Gabriel Marquez, Jr., plead guilty to receiving a stolen vehicle (Pen.
Code, § 496d, subd. (a))1 and was sentenced to the agreed-to term of two years in prison.
In his executed change of plea form he states, “I waive and give up any right to
appeal . . . from the conviction and judgment in my case since I am getting the benefit of
my plea bargain.” Despite this, defendant filed a notice of appeal. In it he stated, “This
appeal is based on the sentence or other matters occurring after the plea that do not affect
the validity of the plea.” Attached to the notice of appeal was a request for a certificate
of probable cause, asserting that the crime for which he was convicted had been changed
from a felony to a misdemeanor and he was “requesting to be called back to court to have
my [conviction, sentence] . . . and record adjusted.” The trial court granted defendant a
certificate of probable cause.
Upon defendant’s 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 [87 S.Ct. 1396, 18 L.Ed. 2d 493], 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 discuss those
issues later in this opinion and conclude that none are meritorious.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have independently reviewed the record for potential error and find no arguable issues.
In her brief before this court, appellate counsel for defendant listed as potential
arguable issues whether defendant received the stipulated sentence and whether
defendant was properly advised of his constitutional2 rights. However, because
defendant, as part of his plea bargain, waived his right to appeal from the conviction and
judgment, we will not address either of these.
Also in her brief, appellate counsel for defendant listed as an additional potential
arguable issue “whether In re Estrada (1965) 63 Cal.2d 740 [(Estrada)] applies to reduce
[defendant]’s conviction of . . . [a violation of] Penal Code section 496d, subdivision (a)
to a misdemeanor pursuant to Proposition 47.” Estrada addresses whether when “a
criminal statute is amended after the prohibited act is committed, but before final
judgment, by mitigating punishment” the pre- or the post-amendment statute governs.
(Estrada at p. 742.)
Proposition 47, embodied, in part, in section 1170.18, provides, as is pertinent
here, “(a) A person currently serving a sentence for a conviction . . . of a felony . . . who
would have been guilty of a misdemeanor under the act . . . had this act been in effect at
the time of the offense may petition for a recall of sentence . . . to request resentencing in
2 Appellate counsel for defendant refers to these as defendant’s “Boykin/Tahl
rights” but includes no citation to either case in her brief.
3
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.” Section 496d, subdivision (a), a violation of which
defendant stands convicted, is not listed in this provision, nor was it either added nor
amended by Proposition 47. Therefore, Estrada does not even come into play.
Moreover, obtaining a certificate of probable cause in the trial court so one can appeal his
or her judgment is not the proper vehicle for obtaining a reduction of one’s felony to a
misdemeanor even for those crimes, unlike a violation of section 496d, subdivision (a), to
which Proposition 47 actually does apply.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
KING
J.
4