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Name: People v. Lopez
Case #: H040726
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 06/29/2015
Subsequent History: Review granted 10/14/2015: S228372

A defendant’s eligibility for Proposition 47 resentencing should be addressed to the trial court in the first instance, not to the Court of Appeal. Lopez was charged with drug offenses in two different cases; the only felonies alleged were possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). He pled no contest and admitted all allegations, which included a strike prior (a Pen. Code, § 288, subd. (b)(1) offense). His Romero request to strike his serious felony prior was denied and he was sentenced to prison. On appeal, Lopez requested that the court reverse the judgments and remand his case for a Proposition 47 hearing (Pen. Code, § 1170.18) to reduce his felonies to misdemeanors. The People countered that Lopez was ineligible for resentencing because his prior section 288, subdivision (b)(1) conviction disqualifies him from Proposition 47 relief. Held: Affirmed. “As relevant here, Proposition 47 amended section 11377 of the Health and Safety Code” to reduce the offense from a wobbler to a misdemeanor for qualified defendants. A defendant may be ineligible for resentencing if he has certain enumerated felonies, is required to register as a sex offender, or is found by the court to pose an unreasonable risk to public safety if resentenced. (See Pen. Code, § 1170.18, subds. (b), (i).) However, it is not for the Court of Appeal to decide whether or not a defendant is eligible for resentencing, or to remand the matter to the trial court for such a hearing. Proposition 47 provides a procedure for defendants to petition for resentencing in the trial court (Pen. Code, § 1170.18, subd. (a)) and it is the trial court which determines a defendant’s eligibility for reduction in sentence. Lopez may file the appropriate petition in the trial court. The pendency of the appellate proceedings would necessarily constitute good cause for a filing delay.