1

Filed 3/12/24 P. v. Martinez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

DAVID HURGEN MARTINEZ,

Defendant and Appellant. E082121

(Super.Ct.No s. FVI6035 &

VCR4848)

OPINION

APPEAL from the Superior Court of San Bernardino County

. Debra Harris,

Judge

. Dismissed.

David Hurgen Martinez, in pro

. per.; Belinda Escobosa, under appointment by the

Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.2 STATEMENT OF THE CASE

On February 15, 1990, a felony complaint charged defendant and appellant David

Hurgen Martine z with second degree robbery under Penal Code 1 section 211 (count 1)

.

The complaint also alleged that count 1 was a serious felony under section 1192.7,

subdivision (c)(19)

. On the same day, defendant pled guilty to count 1 and the court

sentenced defen dant to the midterm of three years

.

On June 7, 2023, defendant filed a pro

. per

. petition under sections 17, subdivision

(b)

, and 1203.4 to reduce his 1990 felony conviction to a misdemeanor

. In his petition,

defendant wrote : “A vehicle was taken by myself & others without owners[’] approval

. I

was already serving a 6 year sentence for possession/controlled substance so I took a deal

for ‘robbery 2nd’ after public defender stated no need to fight charges since the time

would run concurrent with the 6 yrs.”

On July 21, 2023, at the hearing on defendant’s petition, the People argued that

defendant is “ineligible due to the charges, and he’s also ineligible because he needs to

have been out of custody for two years.” 2 When the court asked defense coun sel if he

had any comments, counsel stated : “No, your Honor.” Thereafter, the trial court denied

defendant’s petition

.

1 All statutory references are to the Penal Code unless otherwise specified.

2 On May 29, 1999, a trial court sentenced defendant to 45 years in prison after

defendant was convicted of felony second degree burglary (§ 211) and felony assault

with a firearm on a person (§ 245, subd

. (a)(2))

. “In addition, while serving time on this

case, on March 12, 2003, [defendant] was sentenced to six years in prison for PC4501.5,

Battery by Prisoner.”3 DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to

represent him

. Counsel has filed a brief u nder the authorities of People v. Wende (1979)

25 Cal.3d 436, Anders v. California (1967) 386 U.S. 739, and People v. Delgadillo

(2022) 14 Cal.5th 216 ( Delgadillo )

. 3 In the brief, pursuant to Anders

, appellate counsel

has identified the following issue s to assist the court in its search of the record for error:

1. “ Did the trial court err in denying appellant’s petition under Penal Code section

1203.4 rather than section 17, subdivision (b)?”

2. “ Did the trial court abuse its discretion in deny ing appellant’s petition to reduce

his 1990 felony conviction to a misdemeanor?”

3. “Did the deputy public defender who represented appellant at the July 21,

2023, hearing on his petition to dismiss unde r section 17, subdivision (b), render

ineffective assistance of counsel?”

4. “Does the appellate record show that appellant’s 1990 guilty plea [is] valid?”

5. “Does the appellate record show that appellant’s 1990 attorney rendered

ineffective assistanc e of counsel in advising him to plead guilty to Penal Code section

211?”

3 Although counsel has filed the brief under Anders v. California

, supra , 386 U.S.

738 and People v. Wende

, supra , 25 Cal.3d 436, we deem the brief to be filed under

Delgadillo

, supra , 14 Cal.5th 216 because this appeal involves a postjudgment motion.4

We offered defendant an opportunity to file a personal supplemental brief

. On

January 23, 2024 , defendant filed a nine

- page typewritten brief , with an attachment of

appellate counsel’s Delgadillo brief

. In defendant’s brief, it appears that the crux of

defendant’s argument is that the court erred in denying his petition under section 1203.4,

instead of section 17, subdivision (b)

. However, as will be discussed ante

, section 17,

subdivision (b) does not apply to this case.

The California Legislature has classified most crimes as either felonies or

misdemeanors

. ( People v. Park (2013) 56 Cal.4th 782, 789.) Under section 17,

subdivision (a), “[a] felony is a crime that is punishable with death, by imprisonment in

the state prison, or, notwithstanding any other law, by imprisonment in a county jail

under the provisions of subdivision (h) of Section 1170.” So me offenses, however, are

known as “wobblers,” and may be punished either as a felony or a misdemeanor

. ( Park

,

at p. 789.)

Under section 17, subdivision (b), when an offense qualifies as a “wobbler,” the

crime may be deemed a misdemeanor for all purpose s under certain circumstances

.

These circumstances include : “(1) After a judgment imposing a punishment other than

imprisonment in the state prison or imprisonment in a county jail under the provisions of

subdivision (h) of Section 1170

. [¶]

. . . [¶] (3) When the court grants probation to a

defendant and at the time of granting probation, or on application of the defendant or

probation officer thereafter, the court declares the offense to be a misdemeanor.” (§ 17,

subd

. (b)(1)

, (b) (3).)5

Her e, defendant pled guilty to second degree robbery under section 211, a felony

.

“Robbery is a straight felony, and section 17 does not authorize the reduction of straight

felonies to misdemeanors.” ( People v. Mendez (1991) 234 Cal.App.3rd 1773, 1779; see

People v. Feyrer (2010) 48 Cal.4th 426, 441

- 442 [“ s ection 17, subdivision (b) applies

solely to [wobblers]

. . . . That statute does not confer upon the trial court the authority to

reduce a straight felony to a misd emeanor”].) Therefore, section 17, subdivision (b),

does not apply to defendant’s section 211 conviction

.

Moreover, even if section 211 was a wobbler, w hen the trial court imposed

defendant’s sentence, it did not declare defendant’s crime to be a misdemeanor

. Under

section 17, subdivision (b), after defendant was sentenced to state prison, defendant’s

offense was no longer eligible for reduction to a misdemeanor

. Therefore, the court did

not err in denyi ng his petition under section 1203.4, instead of section 17, subdivision (b),

since defendant was ineligible for relief under section 17

.

In addition, defendant argues : “Did the court error in not analyzing the request

made pursuant to section 17(b) with the changes made by Prop

. 47 in creating section

490.2?”

“Proposition 47 makes certain drug

- and theft

- related offenses misdemeanors,

unless the offenses were committed by certain ineligible defendants.” ( People v. Rivera

(2015) 233 Cal.App.4t h 1085, 1091.) Under Proposition 47, a defendant who is currently

serving a sentence for a felony that would have been a misdemeanor had Proposition 47

been in effect at the time of the offense, may petition for a recall of sentence and

resentencing before the trial court that entered the judgment

. ( § 1170.18, subds

. (a)

- (b).)6

Moreover, Proposition 47 authorizes a defendant who has completed a sentence for a

felony conviction

, that would have qualified as a misdemeanor at the time of th e offense

,

to apply to reclassify or reduce that conviction to a misdemeanor

. ( Id. at subds

. (f)

- (g).)

Defendant’s conviction for robbery, however, is not subject to reclassification

because a violation of section 211 is not one of the offenses within the scope of

Proposition 47

. ( People v. Shabazz (2015) 237 Cal.App.4th 303, 308 [listing code

sections add ed by Proposition 47, non e of which list section 211 as an offense within the

proposition’s purview].) Therefore, Proposition 47 does not apply to defendant’s

conviction for second degree robbery.

Based on the above, we find that the trial court lacked jurisdiction to grant

defendant’s motion under either section 17 or section 1203.4. “A trial court order

denying relief that the court has no jurisdiction to grant does not affect a defendant’s

subst antial rights and is therefore not appealable under section 1237, subdivision (b).”

( People v. King (2022) 77 Cal.App.5th 629, 739.) Under section 1237, subdivision (b), a

court’s postjudgment order is appealable “if that order affects a defendant’s subs tantial

rights. An order denying a motion the court lacks jurisdiction to grant does not affect a

defendant’s substantial rights. [Citation.] Any appeal from such an order must be

dismissed.” ( People v. Alexander (2020) 45 Cal.App.5th 341, 344.) Accord ingly,

because the trial court’s denial of defendant’s motion is not an appealable order, the

appeal must be dismissed.7 DISPOSITION

Defendant’s appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.