People v. Wesley CA1/2

Filed 12/22/15 P. v. Wesley CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A144407 v. HAILU WESLEY, (Solano County Super. Ct. Nos. FCR257485 & FCR298183) Defendant and Appellant.

Appellant Hailu Wesley appeals from denial of his petition to be resentenced to misdemeanor offenses pursuant to Proposition 47. (Pen. Code, § 1170.18, subd. (a).)1 The appeal is authorized by section 1237 and rule 8.204(a)(2)(B) of the California Rules of Court. Appellant’s court-appointed counsel has filed a brief raising no legal issues and has asked this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel advised appellant of his right to file a supplemental brief in his own behalf and appellant has filed such a brief. We shall find no arguable issue requiring briefing and affirm the judgment. FACTS AND PROCEEDINGS BELOW On July 24, 2008, while appellant was serving a life sentence for murder (§ 187) imposed prior to 2008, he was in case No. FCR257485 charged by the District Attorney of Solano County with possession of a controlled substance in a prison facility in

1 All statutory references are to the Penal Code except where otherwise indicated.

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violation of section 4573.6. According to the district attorney a correctional officer saw appellant appear to be “swallowing something” while he was seated with a visitor. After a search, the officer found appellant “had a bindle under his tongue.” Appellant was then placed under “ ‘intensive supervision’ during which he produced several bindles in his stool” which upon testing contained “a total of .4.10 grams net weight of marijuana.”2 On December 2 of that year, pursuant to a negotiated plea, the charged violation of section 4573.6 was dismissed and appellant pled no contest to possession of concentrated cannabis in violation of Health and Safety Code section 11357, subdivision (a). The court imposed the 16 month low term to be served consecutively with the life term. Four and one-half years later, on January 28, 2013, appellant was in case No. FCR 298183 again charged with possession of a controlled substance (marijuana) in a prison facility in violation of section 4573.6. On June 21, 2013, after being advised of the rights he would waive by entering his plea, and waiving those rights as part of a negotiated plea, appellant pled no contest to the offense of violating section 4573.6 and the court imposed the agreed upon two-year low term, also consecutive with his life term. On January 6, 2015, pursuant to Proposition 47, appellant petitioned the superior court to be resentenced on the two drug possession cases just described. The petition was on January 2015 denied on the stated ground that “Proposition 47 does not apply to violations of . . . section 4573.6.” DISCUSSION Section 1170.18 Does Not Deny Appellant Equal Protection of the Law Proposition 47 created a resentencing provision, codified in section 1170.18, which provides that a person currently serving a sentence for certain designated felonies may petition for recall of the sentence to reduce the felony to a misdemeanor. Appellant’s supplemental brief is not clear but appears to maintain that section 1170.18 violates the equal protection clauses of the federal and state Constitutions because it