Filed 5/19/16 P. v. McKinney CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

A LONZO MCKINNEY,

Defendant and Appellant. B269397

(Los Angeles County Super. Ct. No. YA021728)

APPEAL from a n order of the Superior Court of Los Angeles County, Alan

Honeycutt, Judge. Affirmed.

Law Offices of Elizabeth K. Horowitz, Elizabeth K. Horowitz, under appointment

by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.2 INTRODUCTION

Defendant and appellant Alonzo Mc K inney (defendant) appealed from an order

denying his pet ition for resentencing un der Penal Code section 1170.18. 1 On appeal,

defendant’s a ppointed counsel filed an opening brief in accordance with People v. Wende

(1979) 25 Cal.3d 436 ( Wende ) requesting that this court conduct an independent review

of the record to determine if there are any arguable appellate issues. On April 8 , 2016,

we g a ve notice to defendant that his counsel had failed to find any arguable issues and

that defendant had 30 days within whi ch to submit by brief any arguments he wished this

court to consider. Defendant filed a supplemental brief in which he contends that his

alleged felony conviction under section 487.2 should be reduced to a misdemeanor or the

matter remanded to the trial c ourt for resentencing

. We have reviewed the record and

affirm the order

.

BACKGROUND 2

In September 2015, defendant filed a petition for resentencing pursuant to section

1170.18, 3 seeking resentencing with respect to his alleged 1994 felony conviction under

section 487.2. The trial court denied the petition , stating “[t]he court records are

1 All statutory citations are to the Penal Code unless otherwise noted.

2 We omit a recitation of the facts concerning defendant ’ s underlying offense

because defendant ’ s appeal is from an order denying a post

- judgment petition for resentencing.

3 Section 1170.18, subdivision (a) provides, “ A person currently serving a sentence for a conviction, whether by trial or plea, of a felon y 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 co nviction in his or her case to request resentencing

. . . .”3

incomplete and do not show the charge the defendant was convicted of in 1994. Burden

i s on the petitioner/defendant.”

On appeal, we took judicial notice of the mi crofilm records of the trial court file

,

a ccording to which in November 1994 t he District Attorney of Los Angeles County filed

a n information charging defendant with one count of second degree robbery in violation

of section 211, and related charges. Thos e records indicate that defendant was not

convicted in the underlying case

. They contain signed and filed verdict forms stating that

defendant was found not g uilty of second degree robbery (count 1), and grand theft

person in violation of section 487.2, t he necessary included offense of count 1.

Defendant was acquitted. 4 The microfilm records include a filed but unsigned verdict

form concerning “Grand Theft Person, a felony, in violation of

. . . Section 487.2, a lesser

necessar il y included offense than that as charged in Count [1] of the inform ation,” and

defendant’s supplemental brief relies upon this unsigned verdict form

.

DISCUSSION

A

. Grand Theft Person

Defendant contends that because he was convicted of, and sentenced for

, the

felony of grand th eft person in violation of section 487.2, that crime should be reduced to

a misdemeanor or the matter should be remanded to the trial court for resentencing. We

disagree. Defendant was found not guilty of the charges asserted against him , including

the l esser included offense of grand theft person in violation of section 487.2 , and was

acquitted

. Defendant has not established that the trial court erred in denying his petition.

4 We take judicial notice of an abstract of judgment in Los Angeles Superior Court case number BA140260, filed on November 4, 1997, reflecting that in 1997, shortly after his acquittal in the un derlying case, defendant was convicted of assault on an officer in a violation section 245(c) and resisting an executive officer in a violation of section 69 and sentenced to state prison for a term of 25 years to life with the possibility of parole.4

B

. Review

In addition to reviewing the matters raised in defendant’s supplemental brief, we

have made an independent examination of the entire record to determine if there are any

other arguable issues on appeal. Based on that review, we have determined that there are

no other arguable issues on appeal. We are therefore s atisfied that defendant ’ s counsel

has fully complied with her responsibilities under Wende

, supra , 25 Cal.3d 436

.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RAPHAEL J. 

We concur:

TURNER, P.J.

KRIEGLER, J.

 Ju dge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.