People v. Hernandez CA4/1

Filed 11/24/20 P. v. Hernandez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076941

Plaintiff and Respondent,

v. (Super. Ct. No. JCF36035)

SHAWN HERNANDEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

Shawn Hernandez, who is serving a prison sentence for possessing cannabis in prison in violation of Penal Code section 4573.6, appeals from the

trial court’s denial of his petition to dismiss and recall his sentence.1 Hernandez’s petition was based on the fact that, after his conviction, the voters adopted Proposition 64, making it legal for persons at least 21 years of age to possess up to 28.5 grams of cannabis except in specifically identified circumstances, and giving persons currently serving a sentence for a cannabis-related crime that is no longer an offense after Proposition 64, the ability to petition for relief in the form of recall or dismissal of their sentence. (Prop. 64, §§ 4.4, 8.7, as approved by voters, Gen. Elec. (Nov. 8, 2016); Health & Saf. Code, § 11361.8, subd. (a).) In resolving this appeal, we rely on the reasoning of our recent opinion in People v. Whalum (2020) 50 Cal.App.5th 1, review granted August 12, 2020, S262935 (Whalum), in which we concluded that the similar crime of possessing unauthorized cannabis in prison in violation of section 4573.8 was not affected by Proposition 64. Accordingly, we conclude that the trial court properly determined that Hernandez was not entitled to relief, and we therefore affirm the order denying Hernandez’s petition. I. FACTUAL AND PROCEDURAL BACKGROUND On February 26, 2016, an indictment accused Hernandez of possessing an unauthorized substance in prison in violation of section 4573.6. The indictment was based on a correctional officer’s discovery of approximately 0.5 grams of cannabis on Hernandez’s person in Calipatria State Prison. On August 18, 2016, Hernandez pled no contest to a violation of section 4573.6