People v. Jones CA4/1

Filed 3/26/21 P. v. Jones 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D077396

Plaintiff and Respondent,

v. (Super. Ct. No. SCS147831)

EDWARD JONES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed.

Nancy J. King, 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, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

This case involves the sole question of whether defendant’s conviction for possession of cannabis while incarcerated in a state prison, in violation of

Penal Code1 section 4573.8, must be dismissed. We conclude the defendant’s petition to dismiss the conviction was properly denied. FACTUAL AND PROCEDURAL BACKGROUND On November 20, 1999, defendant’s locker in his prison cell at Donovan State Prison was searched. He opened the locker for correctional officers and reached into the locker, grabbed a blue “state issued” shirt and fled from the cell. He was chased and caught. In the pocket of the shirt, officers found a leafy green substance consistent with cannabis. Testing of the substance revealed it to be approximately 3.85 grams of cannabis. On April 7, 2000, defendant entered a plea of no contest to a felony charge of possession of a controlled substance while in prison, in violation of section 4573.8. He received a stipulated sentence of 16 months, to be served consecutive to a term he was then serving in case No. SCD146141. He also was required to pay a $200 restitution fine, pursuant to section 1202.4, subdivision (b), with a matching parole revocation fine imposed and stayed pursuant to section 1202.45. On the ground that possession of cannabis was no longer a felony, defendant on February 7, 2020, filed a petition for dismissal of the conviction and for resentencing pursuant to Proposition 64. The prosecution on February 14, 2020, filed an opposition arguing Proposition 64 did not include section 4573.8 violations. The trial court denied the petition. Defendant filed a timely notice of appeal. We conclude the trial court properly denied the petition.