Filed 8/25/15 P. v. Parish CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B262517
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA026231)
v.
MICHAEL JAMES PARISH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Teri Schwartz, Judge. Affirmed.
Daniel Milchiker, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Appellant Michael James Parish appeals from an order denying his petition for a
recall of sentence after the trial court sentenced him to prison for 25 years to life plus
three years, following his conviction by jury of attempted second degree robbery, having
suffered two prior felony convictions and four prior prison terms. (Pen. Code,
§§ 1170.18, subd. (a), 664, 211, 667, subd. (d), 667.5, subd. (b).) We affirm the order
denying appellant’s petition for a recall of sentence.
FACTUAL AND PROCEDURAL SUMMARY
On June 21, 1996, a jury convicted appellant as previously indicated.1
On July 26, 1996, the trial court imposed the above sentence, including a prison term of
25 years to life pursuant to the “Three Strikes” law for attempted second degree robbery.
On January 26, 2015, appellant, in pro per, filed in the present case (superior court
case No. GA026231) a petition for a recall of sentence pursuant to Penal Code section
1170.18, subdivision (a).2 However, the preprinted form used by appellant did not allege
appellant was “currently serving a sentence” (Pen. Code, § 1170.18, subd. (a)) for
attempted second degree robbery. The form failed to distinguish clearly between
(1) a conviction for which a defendant was “currently serving a sentence” (Pen. Code,
§ 1170.18, subd. (a)) and (2) other prior convictions.3 The result was the form, as
completed by appellant, conflated these two categories, and thus erroneously suggested
he was “currently serving a sentence” (Pen. Code, § 1170.18, subd. (a)) for felonies that
1
A detailed recitation of the facts of the present offense is unnecessary. It is
sufficient to note that in 1995, appellant committed attempted second degree robbery.
2
Penal Code section 1170.18, subdivision (a) states, “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.”
3
The preprinted form does not state it is approved by the Judicial Council.
2
in fact underlay other prior convictions, and erroneously suggested he was not “currently
serving a sentence” (Pen. Code, § 1170.18, subd. (a)) for attempted second degree
robbery.
In particular, as relevant here, the form completed by appellant erroneously
suggested the convictions for which he was “currently serving a sentence” (Pen. Code,
§ 1170.18, subd. (a)) were convictions for (1) a violation of Health and Safety Code
section 11350, (2) a violation of Health and Safety Code section 11357, subdivision (a),
and (3) two violations of “Penal Code section 459 (burglary) for entering an open
commercial establishment with intent to commit larceny, in which the value of the
property taken or intended to be taken did not exceed $950.” (Sic.)4 On the other hand,
in a supporting declaration, appellant stated, “I have also been convicted of the following
other ‘felonies’ ” and listed among them his conviction for “attmpt 2nd degree robb.
Date 06/21/96.” (Some capitalization omitted.)
On February 4, 2015, the trial court denied the petition for the reason “[d]efendant
was convicted of attempted robbery.” On March 5, 2015, appellant filed a notice of
appeal.
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The form did not allege when appellant committed, or was convicted of, either of
the two alleged Health and Safety Code section violations, nor did appellant provide
supporting documentation he was ever charged with, or convicted of, either of them. As
indicated, the petition alleged two violations of “Penal Code section 459 (burglary),” but
the language accompanying that allegation suggested violations, not of Penal Code
section 459, but of Penal Code section 459.5, subdivision (a). Penal Code section 459.5,
subdivision (a) proscribes “shoplifting,” which “is defined as entering a commercial
establishment with intent to commit larceny while that establishment is open during
regular business hours, where the value of the property that is taken or intended to be
taken does not exceed nine hundred fifty dollars ($950).” The petition demonstrates
appellant suffered two 1986 burglary convictions (case No. A536533), but those served
as his strikes, and one of the two 1986 burglary convictions also served as the basis for
one of his Penal Code section 667.5, subdivision (b) prior prison term enhancements in
the present case.
3
CONTENTIONS
After examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent review of the
record.
By notice filed June 12, 2015, the clerk of this court advised appellant to submit
within 30 days any contentions, grounds of appeal, or arguments he wished this court to
consider. No response has been received to date.
REVIEW ON APPEAL
“ ‘On November 4, 2014, the voters enacted Proposition 47, “the Safe
Neighborhoods and Schools Act” (hereafter Proposition 47), which went into effect the
next day. (Cal. Const., art. II, § 10, subd. (a).)” (T. W. v. Superior Court (2015)
236 Cal.App.4th 646, 649, fn. 2 (T. W.).) “Section 1170.18 ‘was enacted as part of
Proposition 47.’ ” (Ibid.) “Section 1170.18 provides a mechanism by which a person
currently serving a felony sentence for an offense that is now a misdemeanor, may
petition for a recall of that sentence and request resentencing in accordance with the
offense statutes as added or amended by Proposition 47. ([Pen. Code] § 1170.18,
subd. (a).) A person who satisfies the criteria in subdivision (a) of section 1170.18, shall
have his or her sentence recalled and be ‘resentenced to a misdemeanor . . . unless the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.’ (Id., subd. (b).)” (T. W., supra,
236 Cal.App.4th at p. 649, fn. 2, italics added.) “The initiative [Proposition 47] . . .
added sections 459.5, 490.2 and 1170.18 to the Penal Code; amended sections 473, 476a,
496 and 666 of the Penal Code; and amended Health and Safety Code sections 11350,
11357 and 11377.” (People v. Shabazz (2015) 237 Cal.App.4th 303, 308.)
Appellant’s petition and supporting documentation demonstrate appellant was,
within the meaning of Penal Code section 1170.18, subdivision (a), “currently serving a
sentence for a conviction” of the felony of attempted second degree robbery. Attempted
second degree robbery (Pen. Code, §§ 664, 211) is not a crime listed in Penal Code
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section 1170.18, subdivision (a), nor was Penal Code section 664 or section 211 added or
amended by Proposition 47. It is thus not true that “[a] person currently serving a
sentence for a conviction . . . of a felony [of attempted second degree robbery] . . . 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.” (Pen. Code, § 1170.18, subd. (a).)
Proposition 47 left the offense of attempted second degree robbery unchanged, and that
offense is a felony. (Pen. Code, §§ 17, subd. (a), 664, 211, 213, subd. (b).) As appellant
observes, the trial court “found that Mr. Parish was ineligible for resentencing as
Proposition 47 did not change the punishment for commission of an attempted robbery.”
The trial court properly denied appellant’s Penal Code section 1170.18 petition for a
recall of sentence.
We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284;
People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The order denying appellant’s petition for a recall of sentence is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
EDMON, P. J.
JONES, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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