People v. Stewart CA2/3

Filed 1/29/16 P. v. Stewart CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B262412

Plaintiff and Respondent, Los Angeles County Super. Ct. No. SA023165 v.

LAMONT STEWART,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Mark E. Windham, Judge. Affirmed. Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Noah P. Hill and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION Defendant Lamont Stewart appeals from a trial court order denying relief under Proposition 47, the Safe Neighborhoods and Schools Act. We conclude he was not convicted of a qualifying offense and affirm. To the extent that defendant’s petition could be deemed a request for resentencing under Proposition 36, he is ineligible for relief. (Pen. Code, § 1170.126.) FACTUAL AND PROCEDURAL BACKGROUND On September 5, 1995, defendant facilitated a drug deal between an undercover officer and his co-defendant, Nora McDonald.1 The officer paid McDonald $10 for 0.09 grams of cocaine. On May 1, 1996, after a jury trial, defendant was convicted of one count of aiding and abetting the sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). The trial court sentenced him to a third-strike term of 28 years to life. The sole issue raised on appeal was whether the sentence violated the Eighth Amendment’s prohibition of cruel and unusual punishment. By unpublished opinion dated December 12, 1997, we affirmed. (People v. Stewart (Dec. 12, 1997, B105284) [nonpub. opn.], pp. 3–4.) On November 25, 2014, defendant filed a petition in pro per under Penal Code section 1170.18, subdivision (a), requesting recall and resentencing under Proposition 47. On January 14, 2015, the superior court summarily denied the petition because Health and Safety Code section 11352 is not a reducible offense under the statute. Defendant filed a timely notice of appeal and we appointed counsel to represent him. On July 15, 2015, defendant’s appellate counsel filed a brief in which he raised no issues and asked us to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) On August 5, 2015, defendant filed a supplemental brief in which he appears to argue that his conviction is not appropriate for third strike sentencing. In light