People v. Lyons CA1/2

Filed 8/14/15 P. v. Lyons CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A143928 v. CURTIS LAMAR LYONS, (Solano County Super. Ct. No. FCR293949) Defendant and Appellant.

Defendant Curtis Lamar Lyons pled no contest to one count of possessing methamphetamine, for an agreed upon sentence of two years in prison. He later petitioned the court to recall his sentence and resentence him to a misdemeanor conviction for possession of methamphetamine, pursuant to Penal Code section 1170.18, subdivision (a)1, commonly known as Proposition 47, which was enacted after his sentence.2 The trial court granted the petition, resentenced defendant to a misdemeanor and ordered defendant to serve a year in jail with credit for time served, plus “parole for one year.” Defendant timely appealed from that order. Defendant’s court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People

1 All statutory references are to the Penal Code unless otherwise stated. 2 “On November 4, 2014, the voters enacted Proposition 47, ‘the Safe Neighborhoods and Schools Act’ (hereafter Proposition 47), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) Section 1170.18 “was enacted as part of Proposition 47.” (Rivera, at p. 1089.)

1

v. Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for review. Defendant has also been informed of his right to file supplemental briefing, and he has not done so. After our independent review of the record, we find no errors or other issues requiring further briefing, and we affirm. DISCUSSION Defendant was charged with felony possession of methamphetamine (Health & Saf. Code, § 11377), in addition to allegations of five prior convictions for which defendant had served prison terms (§ 667.5, subd. (b)). According to the presentence report prepared by the Solano County Probation Office, a police officer drove by defendant as he was walking in Fairfield and saw defendant throw something in the street. Defendant was detained and stated that he was on parole, which was confirmed. The police department conducted a parole search and found two small clear plastic bags in defendant’s wallet. The contents of one bag tested presumptively positive for methamphetamine. At the preliminary hearing, the arresting officer testified that, after laboratory testing, the substance in the bag was confirmed to be methamphetamine. On December 12, 2012, Defendant pled no contest to the felony charge of possessing methamphetamine, pursuant to a negotiated disposition that included the understanding that he would be sentenced to two years in state prison and all of the allegations regarding his five prior convictions would be dismissed. Defendant signed a four-page document entitled “Waiver of Constitutional Rights and Declaration in Support of Defendant’s Motion to Change Plea,” which was also signed by his counsel, and accepted by the trial judge. At the change of plea hearing, the judge engaged in voir dire of defendant, and accepted his plea. The court found there was a factual basis for the plea, based on the preliminary hearing transcript. Defendant was sentenced on January 2, 2013, in accordance with the plea agreement, to two years in prison. He was awarded 416 days in presentence credits.