Opinion
F073032
05-12-2017
THE PEOPLE, Plaintiff and Respondent, v. DAMOR HILL, Defendant and Appellant.
Jyoti Malik, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 06CM8791)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Jyoti Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Poochigian, J.
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INTRODUCTION
Appellant Damor Hill was convicted in 2006 of violating Penal Code section 4573.6, unauthorized possession of controlled substances in prison. In December 2014, Hill filed a petition for resentencing pursuant to Proposition 47, as set forth in section 1170.18. The superior court denied the petition on the basis a section 4573.6 offense was not eligible for resentencing under section 1170.18. Hill appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
References to code sections are to the Penal Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL SUMMARY
On July 21, 2006, Hill pled no contest to one count of violating section 4573.6. The trial court sentenced Hill to the upper term of four years for this offense. The term was to run consecutive to the prison term Hill was serving in Riverside County case number RIF120100 for first degree burglary.
On December 18, 2014, Hill filed a petition for resentencing pursuant to section 1170.18. The petition sought resentencing of the section 4573.6 conviction. On January 15, 2015, the People filed opposition to the petition, stating that relief should not be granted as section 4573.6 was not an offense that was eligible for resentencing under section 1170.18.
On January 29, 2015, the superior court denied the petition on the grounds a section 4573.6 offense was not eligible for resentencing. Hill submitted a notice of appeal on June 22, 2015, along with an explanation for the delay in submitting the notice of appeal.
On November 12, 2015, the superior court filed its order denying the petition for resentencing. Hill thereafter filed a notice of appeal on December 18, 2015.
Appellate counsel was appointed on February 18, 2016. A motion to augment the record was filed March 18, 2016. The motion sought to augment the record on appeal with the clerk's and reporter's transcripts in case number RIF120100. This court denied the motion to augment on April 8, 2016.
DISCUSSION
On June 13, 2016, appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436. That same day, this court issued its letter to Hill inviting him to submit supplemental briefing. No supplemental brief was filed.
Hill is not entitled to relief under Proposition 47. Section 1170.18, subdivision (a), makes certain drug- and theft-related offenses misdemeanors. These offenses previously were designated as felonies or wobblers. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Under section 1170.18, a person who is currently serving a felony sentence for an offense that is now designated a misdemeanor may petition for recall of the sentence and resentencing. (People v. Rivera, supra, at p. 1092.)
Proposition 47 amended sections 473, 476a, 496, and 666, as well as Health and Safety Code sections 11350, 11357, and 11377. (People v. Contreras (2015) 237 Cal.App.4th 868, 890.) Hill was convicted of a violation of section 4573.6, possession of a controlled substance in prison, which is not one of the offenses subject to resentencing under section 1170.18, subdivision (a), as it is not enumerated in the statute. Only if the petition satisfies the criteria set forth in section 1170.18, subdivision (a), is the petition to be granted. (§ 1170.18, subd. (b).)
The superior court properly denied Hill's petition for resentencing.
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The November 12, 2015, order denying the petition for resentencing is affirmed.