People v. Hamilton CA4/1

Filed 4/23/21 P. v. Hamilton CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D077879

Plaintiff and Respondent,

v. (Super. Ct. No. SCN292715)

KENNETH HAMILTON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed. Mark Alan Hart, 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, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respond. In 2011, Kenneth Hamilton was charged, along with other gang members, with two counts of murder. Hamilton entered into a negotiated plea agreement. Hamilton pleaded guilty to two counts of voluntary

manslaughter (Pen. Code,1 § 192, subd. (a)) and admitted a gang enhancement (§ 186.22, subd. (b)) as well as a firearm enhancement (§ 12022, subd. (a)(1)). The parties stipulated to a determinate term of 20 years in prison. Hamilton was sentenced in accordance with the plea agreement. In 2019, Hamilton filed a petition for resentencing under section 1170.95. The court appointed counsel and solicited briefing. After reviewing the briefing and the record of conviction, the court found Hamilton was statutorily ineligible for relief under section 1170.95 and denied the petition. Hamilton filed a timely notice of appeal. Although Hamilton was not convicted of murder as required by section 1170.95, he argues he must be eligible because he was originally charged with murder on an aiding and abetting theory. He also contends that if he is not given the benefit of the relief enacted by Senate Bill No. 1437, that would violate the Equal Protection Clause of the Fourteenth Amendment. Hamilton candidly admits multiple courts of appeal have rejected his arguments, but he contends that all the courts, including this court, simply got it wrong, and the opinions should not be followed. We respectfully disagree and will follow the unanimous precedent from several appellate districts and reject Hamilton’s arguments. STATEMENT OF FACTS This appeal follows an earlier plea of guilty. The only factual statements are taken from the probation officer’s report. The facts are well summarized in the respondent’s brief. We include them here simply for background information.