People v. O'Brien CA5

Filed 6/14/16 P. v. O’Brien CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070347 Plaintiff and Respondent, (Fresno Super. Ct. No. F14906089) v.

TERRY LEE O'BRIEN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge. William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Franson, J. and Peña, J.

Appellant Terry Lee O’Brien appeals his sentence following a probation violation. Appellant contends his prior felony conviction for possession of methamphetamine under Health and Safety Code section 113771 should have been retroactively deemed a misdemeanor pursuant to Proposition 47. Appellant further alleges the equal protection clause requires his prior conviction be deemed a misdemeanor. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On or around June 1, 2013, appellant was convicted of possessing a controlled substance under section 11377, subdivision (a), a felony. After two referrals to the deferred entry of judgment program pursuant to Penal Code section 1000, appellant was sentenced to three years of felony probation on November 26, 2013. These proceedings, before the Fresno Superior Court, were identified as case number F13905301 (the 301 case). On or around August 20, 2013, appellant was convicted of possessing a controlled substance for sale under section 11378, a felony. Appellant was ultimately sentenced, in conjunction with the 301 case, to three years of felony probation. These proceedings, also before the Fresno Superior Court, were identified as case number F13907918 (the 918 case). On June 23, 2014, while still on probation in the 301 and 918 cases, appellant was stopped by police for a bicycle violation and searched pursuant to his probation terms. A glass pipe containing methamphetamine, a digital scale, 32.53 grams of methamphetamine, and $138 in cash were discovered. Appellant was charged, and pleaded guilty, to possessing methamphetamine for sale under section 11378, a felony, with an enhancement, triggered by the 918 case, for having a prior conviction within the meaning of section 11370.2, subdivision (c). In exchange for the plea, appellant was