Opinion
D073593
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. BINH P. NGUYEN Defendant and Appellant.
Ava R. Stralla, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF16821) APPEAL from an order of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In March 2006 Binh P. Nguyen pleaded guilty to possessing an illegal substance (marijuana) in a state prison (Pen. Code, § 4573.6). The trial court sentenced Nguyen to the middle term of three years in prison to run consecutively to the term he was already serving.
Undesignated statutory references are to the Penal Code.
In September 2017 Nguyen filed a petition for resentencing under Proposition 47, the Safe Neighborhoods and Schools Act (§ 1170.18, subd. (b)). At a hearing later that month, no one appeared to represent Nguyen. The court asked the prosecutor, "The question that I have is . . . it reducible?" The prosecutor responded, "No." The court replied, "I didn't think so." The court denied the petition without prejudice.
In November 2017 Nguyen filed a second petition for resentencing. The petition indicated that Nguyen was currently serving a sentence of 46 years to life at Pelican Bay State Prison for an unrelated offense and stated: "Defendant believes that if he was a . . . free civilian that this Petition would have been granted; yet, since Defendant is a . . . prisoner, he is not being considered for resentencing or given the warranted relief. Therefore, Defendant's Equal protection right under the XIV Amendment ha[s] been violated."
In December 2017 Nguyen filed his third petition for resentencing. The prosecutor opposed the petition, indicating that Nguyen was "ineligible for the relief requested" as his current conviction was for a violation of section 4573.6. At a hearing later that month, the court continued the matter because the public defender had not been served with notice of the hearing. The prosecutor added that Nguyen did not qualify for relief.
At the continued hearing later that month, defense counsel, the prosecutor, and the court reviewed the case files of Nguyen's conviction and noted that Nguyen had been sentenced on March 2, 2006, for a violation of section 4573.6, to the middle term of three years. Defense counsel indicated that was consistent with the records he had and asked "the court [to] take the matter off calendar."
On February 20, 2018, Nguyen filed a timely notice of appeal from "the sentence or other matters occurring after the plea that do not affect the validity of the plea." Concurrently with the notice of appeal, Nguyen filed a request for a certificate of probable cause, stating that he received ineffective assistance of counsel because the public defender did not contact him prior to the hearing that took the matter off calendar. He claimed that his equal protection rights were violated because he is a prisoner and that "if he was a free civilian that this Petition would have been granted." He also claimed that he qualified for relief under Proposition 47. The court granted Nguyen's request for a certificate of probable cause.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. She presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has identified the following issues that "might arguably support the appeal" (Anders v. California (1967) 386 U.S. 738, 744 (Anders)): whether (1) the court denied Nguyen's petition for resentencing on the basis Nguyen was incarcerated; (2) Nguyen's equal protection rights were violated in that if he were a free citizen and not an incarcerated prisoner, his possession of marijuana conviction would be eligible for reduction to a misdemeanor. We offered Nguyen the opportunity to file a brief on his own behalf, and he has not responded.
Section 1170.18, subdivision (a) permits a defendant serving a sentence for one of the enumerated theft or drug offenses to petition for resentencing under the new, more lenient, provisions. 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).) A violation of section 4573.6 is not listed in section 1170.18, subdivision (a) as a crime that is potentially eligible for reclassification as a misdemeanor. Therefore, the record does not support an argument that defense counsel provided ineffective assistance when he requested that the matter be taken off calendar, or that the trial court erred by taking the matter off calendar. Proposition 47 also allows both incarcerated individuals and individuals who have completed their sentences to petition for relief. (§ 1170.18, subd. (a) & (f).) The record does not support an assertion that the court ruled on the petition based on Nguyen's status as a prisoner.
Section 1170.18, subdivision (a) provides: "A person who, on November 5, 2014, was 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."
Nor can any viable argument be made that the equal protection clauses of the United States and California Constitutions are violated because section 1170.18 provides for reduction in punishment for a violation of Health and Safety Code section 11350 (personal possession of a controlled substance), but not for a violation of section 4573.6 (possession of a controlled substance in state prison). To establish an equal protection claim, a defendant must show "that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530, italics omitted.) "A defendant ' "does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives." ' " (People v. Acosta (2015) 242 Cal.App.4th 521, 527.) Accordingly, the "rational basis" standard applies to this constitutional claim. (Ibid.)
Health and Safety Code section 11350 (former Health & Safety Code section 11500) "is designed to protect the health and safety of all persons within its borders by regulating the traffic in narcotic drugs." (People v. Clark (1966) 241 Cal.App.2d 775, 780.) Section 4573.6, however, serves the " 'necessary' " purposes of " 'prison administration.' " (Clark, at p. 779.) Because the two statutes serve different purposes, Nguyen is not similarly situated to persons convicted of violation of Health and Safety Code section 11350. Thus, Nguyen does not have a viable equal protection claim.
See People v. Martin (2001) 25 Cal.4th 1180, 1184. --------
We have examined the record and are satisfied that appellate counsel has fully complied with her responsibilities and there are no arguable issues. (See People v. Kelly (2006) 40 Cal.4th 106, 118-119; Wende, supra, 25 Cal.3d at pp. 441-442.) Competent counsel has represented Nguyen on this appeal.
DISPOSITION
The order is affirmed.
NARES, Acting P. J. WE CONCUR: IRION, J. DATO, J.