Opinion
F072709
10-19-2016
THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN JAMES GRAND, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. SC082044A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Kane, J., and Detjen, J.
-ooOoo-
Appointed counsel for defendant Christian James Grand asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded with a letter, explaining that he had spent most of his life in prison, was working hard to better himself (which is clearly the case), and hoped his sentence could be shortened. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On August 26, 2015, defendant petitioned the trial court pursuant to Proposition 47 (Pen. Code, § 1170.18) to reduce his 2001 felony conviction for possession of a controlled substance in prison (§ 4573.6) to a misdemeanor.
All statutory references are to the Penal Code. --------
On September 30, 2015, the trial court denied the petition because the offense was not eligible for relief under section 1170.18.
On November 12, 2015, defendant filed a notice of appeal.
DISCUSSION
On November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, and it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (Id. at p. 1091.)
"Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in 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.' (§ 1170.18, subd. (b).) Subdivision (c) of section 1170.18 defines the term 'unreasonable risk of danger to public safety,' and subdivision (b) of the statute lists factors the court must consider in determining 'whether a new sentence would result in an unreasonable risk of danger to public safety.' (§ 1170.18, subds. (b), (c).)" (People v. Rivera, supra, 233 Cal.App.4th at p. 1092.) "Section 1170.18 also provides that persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application with the trial court to have their felony convictions 'designated as misdemeanors.' (§ 1170.18, subd. (f); see id., subds. (g)-(h).)" (Id. at p. 1093.)
Possession of a controlled substance in prison (§ 4573.6) is not one of the offenses enumerated in section 1170.18, and thus the trial court properly denied defendant's motion to reduce the felony to a misdemeanor pursuant to Proposition 47.
Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The trial court's order denying defendant's petition for reduction of his felony conviction to a misdemeanor under Proposition 47 is affirmed.