Opinion
G053594
04-18-2017
THE PEOPLE, Plaintiff and Respondent, v. JASON ALEXANDER MAHONEY, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 09ZF0068) OPINION Appeal from postjudgment orders of the Superior Court of Orange County, Lance P. Jensen, Judge. Affirmed. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.
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Defendant Jason Alexander Mahoney appeals from postjudgment orders denying (1) his motion for reconsideration of his earlier motion to strike prior convictions pursuant to Penal Code section 1385, and (2) his motion to strike a current conviction for street terrorism (§ 186.22, subd. (a)) based upon the later decided case of People v. Rodriguez (2012) 55 Cal.4th 1125.
All statutory references are to the Penal Code.
We appointed counsel to represent defendant. Counsel did not argue against his client, but advised the court that after a full review of the record he was unable to find an issue to argue on his client's behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given an opportunity to file a written argument in his own behalf, but he has not done so.
FACTS
Prior History of Case
In 2010, a jury convicted defendant of being an active gang member in possession of a firearm (former § 12025, subds. (a)(3), (b)(3), now § 25400, subds. (a)(3), (c)(3); count 1), possession of a firearm by a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1); count 2), commercial burglary (§ 459; count 3), grand theft (§ 487, subd. (a); count 4), and street terrorism (§ 186.22, subd. (a); count 5). The jury also found defendant had committed the offenses in counts 1 through 4 for the benefit of a criminal street gang. (§ 186.22, subd. (b).) The court found true two prior serious felony convictions and one prior prison term (§§ 667, 667.5), and denied defendant's section 1385 motion to dismiss the prior strikes.
The court sentenced defendant to an aggregate term of 35 years to life, consisting of a three strike sentence of 25 years to life on count 1, and two consecutive five-year terms for the prior serious felony convictions (§ 667). Sentence was imposed but punishment stayed pursuant to section 654 on counts 2 and 4. The court imposed a sentence of 25 years to life on counts 3 and 5 to be served concurrently with the sentence on count 1. The court also imposed sentence on the gang enhancements as to counts 1 through 4, but stayed punishment pursuant to section 654. The prison prior enhancement was stricken for purposes of sentencing only.
Defendant appealed the judgment and we affirmed the convictions, but reversed the judgment in part, holding that defendant's conviction of grand theft, count 4, must be reduced to petty theft and defendant must be resentenced accordingly. We also ordered punishment on count 5 stayed pursuant to section 654. (People v. Mahoney (Oct. 31, 2011, G044328) [nonpub. opn.].) On remand, the court stayed imposition of sentence on count 4. The court also stayed the previously imposed 25 years to life sentence on count 5 under section 654.
Defendant's Motions
On November 5, 2014, some three years after we issued our opinion in defendant's appeal, Proposition 47 became effective. Shortly thereafter, defendant began filing motions, starting, simply enough, with a petition under Proposition 47 (§1170.18) for recall of his sentence on count 3 (commercial burglary), reduction of that conviction to a misdemeanor conviction and for resentencing on count 3. Nearly one-year later, the straightforward Proposition 47 petition, not yet having been resolved, defendant filed a motion requesting the court to (1) dismiss count 3 (commercial burglary), (2) resentence defendant on count 4 (grand theft) pursuant to section 1170.18, subdivision (b), and (3) to dismiss defendant's prior strikes. Defendant later broadened his request once again by requesting the court to "reverse" the conviction on count 5 (street terrorism) based on the Supreme Court's holding in People v. Rodriguez, supra, 55 Cal.4th at page 1132, that a violation of section 186.22, subdivision (a) requires two or more gang members to have participated in the target crime.
At this point in the proceedings, defendant and his counsel seemed to have forgotten that defendant had already stayed imposition of sentence on what was then a petty theft conviction on count 4 in compliance with this court's opinion on the appeal. --------
The Court's Ruling
The court recalled defendant's sentence, vacated the 25 years to life concurrent sentence on count 3, designated count 3 as a misdemeanor, suspended imposition of sentence on that count, and dismissed the associated gang enhancement. The court denied the motion to dismiss the conviction on the street terrorism conviction in count 5 and declined to dismiss the prior strike convictions under section 1385. In sum, the court ruled that its "resentencing on count 3 as a misdemeanor [has] no effect on the defendant's overall sentence of 35 years to life."
DISCUSSION
We have reviewed the entire record in this case and, like counsel, are unable to find an arguable issue. The court properly exercised its sentencing discretion in concluding that all of the reasons it had stated, when it had originally denied the section 1385 motion at the time of defendant's original sentencing, still applied, and were unaffected by the reduction of the count 3 offense to a misdemeanor. As to the denial of the motion to dismiss the conviction on count 5, the court lacked jurisdiction to grant that relief. Proposition 47 vests jurisdiction in the trial court to revisit a sentence pursuant to the terms of section 1170.18, but nothing in section 1170.18 suggests that it vests the trial court with the authority to reverse a final judgment not covered by that statute.
DISPOSITION
The postjudgment orders are affirmed.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.