People v. Brown CA2/2

Filed 4/1/21 P. v. Brown CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B303072

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA070234) v.

JERRY EMANNUEL BROWN II,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Christopher G. Estes, Judge. Affirmed. Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Blythe J. Leszkay and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Jerry Emannuel Brown, II (defendant) appeals from the denial of his Proposition 64 petition for resentencing or dismissal under Health and Safety Code section 11361.8, subdivision (b).1 Defendant contends that the trial court erred in rejecting his argument that when Proposition 64 legalized simple possession of cannabis by people 21 years of age or older, it was meant to extend to those incarcerated in state prisons. We agree with respondent that defendant does not qualify for relief under section 11361.8, and thus we affirm the trial court’s order. BACKGROUND In 2017, defendant was charged with one count of possession of a controlled substance in a custodial facility, in violation of Penal Code section 4573.6, subdivision (a). In 2018, defendant agreed to plead no contest to the charge in exchange for a sentence of four years, to run consecutively to the prison term he was currently serving, without admitting the two prior serious felonies alleged in the information. Defendant entered his plea and stipulated that the incident report and the probation officer’s report provided the factual basis for his plea. The probation report and incident report provide that on December 24, 2016, while defendant was incarcerated and with a visitor, correctional officers monitoring the visiting room observed defendant holding a blue bindle in his hand. The bindle was recovered and determined to contain 1.5 grams of marijuana. Defendant was then x-rayed, and another bindle was observed in his stomach, which was later determined to contain 1.5 grams of marijuana. __________________________________________________________ 1 All further statutory references are to the Health and Safety Code, unless otherwise indicated.