Opinion
E068789
12-15-2017
THE PEOPLE, Plaintiff and Respondent, v. PAUL DIXON LEWIS, Defendant and Appellant.
Paul Dixon Lewis, in pro. per.; Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1102889) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Paul Dixon Lewis, in pro. per.; Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant appeals from the superior court's order denying his petition for resentencing under Health & Safety Code section 11361.8, subdivision (b) (Proposition 64). We affirm.
Section references are to the Health and Safety Code except where otherwise indicated. --------
FACTS AND PROCEDURE
On May 16, 2011, defendant was an inmate at the California Rehabilitation Center in Norco, serving a 49-year sentence for raping a 15-year-old girl in 1990. Correctional officers searched defendant and found in his underwear a blue latex glove containing 13.2 grams of marijuana wrapped in 25 plastic bindles.
On June 4, 2012, a jury convicted defendant in count 1 of possessing a controlled substance in a penal institution (Pen. Code, § 4573.6) and in count 2 of possessing marijuana for sale (Health & Saf. Code, § 11359). The court found true allegations that defendant had eight prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)) and one prison term prior (Pen. Code § 667.5, subd. (b)). The court sentenced defendant to 25 years to life on count 1 and stayed the sentence for count 2 pursuant to Penal Code section 654.
On November 8, 2016, the voters passed the Control, Regulate and Tax Adult Use of Marijuana Act (Proposition 64), which amended section 11359 to provide that "[e]very person 18 years of age or over who possesses cannabis for sale shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment." (§ 11359, subd. (b).)
Proposition 64, which became effective November 9, 2016, also included section 11361.8, which allows a "person currently serving a sentence for a conviction" of specified marijuana-related crimes to petition the superior court to recall the prisoner's sentence and resentence them according to the amended statute. (§ 11361.8, subd. (a).) "If an inmate files such a petition and satisfies the statutory criteria for relief, 'the court shall grant the petition . . . unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.' (Health & Saf. Code, § 11361.8, subd. (b).) An ' "unreasonable risk of danger to public safety" ' is defined as 'an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [Penal Code section 667, subdivision (e)(2)(C)(iv)].' (Pen. Code, § 1170.18, subd. (c); see Health & Saf. Code, § 11361.8, subd. (b)(2).)" (People v. Rascon (2017) 10 Cal.App.5th 388, 392-393.)
On February 8, 2017, defendant filed a petition for resentencing under section 11361.8, subdivision (b).
On April 28, 2017, the People filed its response, arguing defendant is not eligible for resentencing because count 1 is not an eligible offense and defendant is ineligible for resentencing on count 2 because defendant has three "super strikes" for violating Penal Code sections 264.1, 261 and 288a, subdivision (d).
On June 9, 2017, the court denied the petition because of defendant's super strikes and because he was required to register under Penal Code section 290.
This appeal followed.
DISCUSSION
Upon defendant's appeal, this court appointed counsel to represent him. Counsel has filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a brief statement of the case, a summary of the facts and a potential arguable issue and requesting this court undertake an independent review of the record. We have also afforded defendant the opportunity to file a personal supplemental brief, which he has done.
Defendant argues the trial court improperly denied his petition because his conviction for possessing marijuana for sale under Health and Safety Code section 11359 is listed as an eligible offense in Health and Safety Code section 11361.8, subdivision (a). While it is true that possessing marijuana for sale is listed as an eligible offense, defendant ignores that the court may deny the petition if it "determines that granting the petition would pose an unreasonable risk of danger to public safety." (Health & Saf. Code, § 11361.8, subd. (b)). The court determined that defendant had already committed three of the "super strikes" listed in Penal Code section 667, subdivision (e)(2)(C)(iv), and so it acted within its discretion when it determined granting the petition would pose an unreasonable risk of danger to public safety. (Health & Saf. Code, § 11361.8, subd. (b)(2); Pen. Code, §§ 1170.18, subd. (c), 667, subd. (e)(2)(C)(iv).) Thus, the court did act improperly when it denied defendant's petition.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the entire record and find no arguable issues.
DISPOSITION
The order denying defendant's petition under section 11361.8 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. SLOUGH
J.