Filed 5/17/16 P. v. Fontaine 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCOS RICHARD FONTAINE,

Defendant and Appellant.

 B262961

 (Los Angeles County

 Super. Ct. No. SA059318)

APPEAL from an order of the Superior Court of Los Angeles County, 

Lauren Weis Birnstein, Judge. Affirmed.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant 

and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Appellant Marcos Richard Fontaine appeals from an order denying his petition for 

a recall of sentence after the trial court sentenced him following his conviction by jury for 

first degree burglary. (Pen. Code, §§ 459, 460, subd. (a), 1170.18, subd. (a).) We affirm 

the order denying appellant’s petition for a recall of sentence.
2

FACTUAL and PROCEDURAL SUMMARY

On January 4, 2007, an amended information alleged that on or about July 27, 

2004, appellant committed first degree burglary. The amended information also alleged a 

person was present in the residence for purposes of Penal Code section 667.5, 

subdivision (c)(21), making the offense a violent felony. The amended information 

further alleged, inter alia, appellant suffered eight prior felony convictions for purposes 

of the Three Strikes law, two prior serious felony convictions (Pen. Code, § 667, 

subd. (a)(1)), and six prior felony convictions for which he served separate prison terms 

(Pen. Code, § 667.5, subd. (b)). The February 2, 2007 minute order reflects that, on that 

date, a jury convicted appellant of first degree burglary, and found true the Penal Code 

section 667.5, subdivision (b) allegation.

1

On January 11, 2015, appellant served on the Los Angeles County District 

Attorney (DA) (and at some point lodged with the trial court), a petition for a recall of 

sentence pursuant to Penal Code section 1170.18, subdivision (a)2(hereafter, petition).

The petition alleged appellant was currently serving a sentence in the “Correctional 

Training Facility” for a violation of Penal Code section 459, and that the amount in 

question was not more than $950. On January 27, 2015, the DA responded, stating 

appellant was ineligible for the relief requested because appellant had been convicted of 

residential burglary.

 

1

The record does not reflect whether the various prior conviction allegations were 

or were not found true (whether by jury or by the court) or whether those allegations were 

or were not admitted by appellant. The record reflects appellant’s probation and 

sentencing hearing was scheduled for March 2, 2007, but does not reflect any disposition.

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

On January 30, 2015, the trial court denied the petition on the ground appellant 

had been convicted of residential burglary and was therefore ineligible for relief. On 

March 24, 2015, appellant filed a notice of appeal.

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 January 27, 2016, 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.)
4

It is clear from the record in this case that any sentence appellant was currently 

serving was for the felony of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). 

That crime is not listed in Penal Code section 1170.18, subdivision (a), nor was Penal 

Code section 459 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 first degree burglary] . . . 

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), 

italics added.) Proposition 47 left the offense of first degree burglary unchanged, and 

that offense is a felony. (Pen. Code, §§ 17, subd. (a), 459, 460, subd. (a), 461, former

subd. 1, now subd. (a).) The trial court properly denied appellant’s Penal Code 

section 1170.18, subdivision (a) petition for a recall of sentence.

We have examined the entire record and are satisfied counsel has complied fully 

with counsel’s responsibilities. (People v. Wende (1979) 25 Cal.3d 436, 443; Smith v. 

Robbins (2000) 528 U.S. 259, 278-284.)
5

DISPOSITION

The order denying appellant’s petition for a recall of sentence is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

HOGUE, J. 

We concur:

EDMON, P. J.

ALDRICH, J.

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.