Filed 3/28/16 P. v. Prasad 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064377
v. (Super.Ct.No. RIF134386)
DHARMENDRA PRASAD, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Dharmendra Prasad appeals from an order denying
his petition to reduce his conviction to a misdemeanor, pursuant to Penal Code
section 1170.18.1 We find no error and will affirm the order.
PROCEDURAL BACKGROUND
On April 30, 2007, defendant was charged by amended information with two
counts of making criminal threats (§ 422, counts 1 & 2), and two counts of assault with a
deadly weapon (§ 245, subd. (a)(1), counts 3 & 4). As to counts 1 and 2, the information
alleged that defendant personally used a deadly weapon. (§§ 12022, subd. (b)(1), 1192.7,
subd. (c)(23).) The information also alleged that he had served one prior prison term.
(§ 667.5, subd. (b).) On August 16, 2007, a jury found defendant guilty of count 1, but
found the firearm enhancement not true. The jury acquitted defendant on counts 2 and 4.
On count 3, the jury found him guilty of the lesser included offense of misdemeanor
battery. (§ 242.) At a bifurcated hearing, a trial court found the prior prison term
allegation not true.
At the sentencing hearing on September 21, 2007, the court denied defendant’s
oral motions for new trial and to reduce his charges. The court sentenced him to the
midterm of two years on count 1 and a concurrent term of 180 days on count 3, with
credit for time served. The court noted that the credit for time served clearly exceeded
the time of defendant’s commitment.
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2
In November 2014, California voters approved Proposition 47, the Safe
Neighborhoods and Schools Act, which became effective November 5, 2014.
(§1170.18.) “Proposition 47 makes certain drug- and theft-related offenses
misdemeanors, unless the offenses were committed by certain ineligible defendants.
These offenses had previously been designated as either felonies or wobblers (crimes that
can be punished as either felonies or misdemeanors).” (People v. Rivera (2015) 233
Cal.App.4th 1085, 1091.) “Proposition 47 also created a new resentencing provision:
section 1170.18. Under section 1170.18, a person ‘currently serving’ a felony sentence
for an offense that is now a misdemeanor under Proposition 47, may petition for a recall
of that sentence and request resentencing in accordance with the statutes that were added
or amended by Proposition 47.” (Id. at p. 1092.)
On January 13, 2015, defendant filed, in propria persona, a petition for
resentencing under section 1170.18. He asserted that he was convicted on September 21,
2007 of a violation of section 422 (making criminal threats), which “has now been made
a misdemeanor pursuant to Proposition 47.” He further stated that he was currently
serving a sentence at the California Medical Facility for petty theft (§ 666), and that he
had also been convicted of two other felonies: “Penal Code § VC10801 [sic], Date 9-29-
95, Case No: 95WF1183” and “Penal Code § VC10851(A), Date 12-29-97, Case
No. 98WF0001.”
On July 16, 2015, the court denied the Proposition 47 petition, on the ground that
making criminal threats (§ 422) was not a qualifying felony.
3
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to
represent him. 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 and a few potential arguable issues: (1) whether defendant’s conviction of
criminal threats (Pen. Code, § 422) qualifies for resentencing under Penal Code section
1170.18, subdivision (a), or reclassification under Penal Code section 1170.18,
subdivision (f); (2) whether the court considering defendant’s Proposition 47 petition was
required and authorized to sua sponte consider whether to reduce his other conviction
under Penal Code section 666 to a misdemeanor; (3) while this appeal is pending,
whether this court has jurisdiction and authority to designate a qualifying current
conviction for violating Penal Code section 666 as a misdemeanor; (4) while this appeal
is pending, whether this court has jurisdiction and authority to designate prior convictions
for violating Vehicle Code section 10851 as misdemeanors; and (5) if this court lacks
jurisdiction and authority to consider whether the convictions under Penal Code section
666 and Vehicle Code section 10851 should be resentenced and/or reclassified as
misdemeanors, should the current matter on the conviction for making criminal threats
(Pen. Code, § 422) be remanded with directions to allow defendant to pursue a properly
filed petition. Counsel has also requested this court to undertake a review of the entire
record.
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done.
4
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
MILLER
J.
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