Filed 1/26/16 P. v. Johnson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE, B264665
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA419478)
v.
CHAUNCY LYNN JOHNSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Norm Shapiro, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Appellant Chauncy Lynn Johnson appeals from an order denying his petition for a
recall of sentence after the trial court sentenced him to prison for six years following his
plea of no contest to selling a controlled substance, having suffered a prior felony
conviction. (Pen. Code, §§ 667, subd. (d), 1170.18, subd. (a); Health & Saf. Code,
§ 11352, subd. (a).) We affirm the order denying appellant’s petition for a recall
of sentence.
FACTUAL AND PROCEDURAL SUMMARY
On June 26, 2014, appellant pled no contest to selling a controlled substance and
admitted a strike, and the court sentenced him to prison as previously indicated.1
On May 4, 2015, appellant, in pro per, filed in the present case (superior court case
No. BA419478) a petition for a recall of sentence pursuant to Penal Code section
1170.18, subdivision (a).2 The petition alleged appellant was currently serving a sentence
for the above violation of Health and Safety Code section 11352, subdivision (a).
On May 14, 2015, the trial court denied the petition on the ground appellant’s
conviction for a violation of Health and Safety Code section 11352, subdivision (a) did
not qualify for relief under Proposition 47. On June 1, 2015, appellant filed a notice of
appeal.
1
A detailed recitation of the facts of the underlying offense is unnecessary. It is
sufficient to note that in 2013, appellant sold cocaine base.
2
Penal Code section 1170.18, subdivision (a) states, “A person currently serving a
sentence for a conviction, whether by trial or plea, of a felony or felonies who would
have been guilty of a misdemeanor under the act that added this section (‘this act’) had
this act been in effect at the time of the offense may petition for a recall of sentence
before the trial court that entered the judgment of conviction in his or her case to request
resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and
Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those
sections have been amended or added by this act.”
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CONTENTIONS
After examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent review of the
record.
By notice filed September 21, 2015, the clerk of this court advised appellant to
submit within 30 days any contentions, grounds of appeal, or arguments he wished this
court to consider. No response has been received to date.
REVIEW ON APPEAL
“ ‘On November 4, 2014, the voters enacted Proposition 47, “the Safe
Neighborhoods and Schools Act” (hereafter Proposition 47), which went into effect the
next day. (Cal. Const., art. II, § 10, subd. (a).)’ ” (T.W. v. Superior Court (2015)
236 Cal.App.4th 646, 649, fn. 2 (T.W.).) “Section 1170.18 ‘was enacted as part of
Proposition 47.’ ” (Ibid.) “Section 1170.18 provides a mechanism by which a person
currently serving a felony sentence for an offense that is now a misdemeanor, may
petition for a recall of that sentence and request resentencing in accordance with the
offense statutes as added or amended by Proposition 47. ([Pen. Code,] § 1170.18,
subd. (a).) A person who satisfies the criteria in subdivision (a) of section 1170.18, shall
have his or her sentence recalled and be ‘resentenced to a misdemeanor . . . unless the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.’ (Id., subd. (b).)” (T.W., supra,
236 Cal.App.4th at p. 649, fn. 2, italics added.) “The initiative [Proposition 47] . . .
added sections 459.5, 490.2 and 1170.18 to the Penal Code; amended sections 473, 476a,
496 and 666 of the Penal Code; and amended Health and Safety Code sections 11350,
11357 and 11377.” (People v. Shabazz (2015) 237 Cal.App.4th 303, 308.)
Appellant’s petition demonstrates he was, within the meaning of Penal Code
section 1170.18, subdivision (a), “currently serving a sentence for a conviction” of the
felony of selling a controlled substance (Health & Saf. Code, § 11352, subd. (a)). That
crime is not listed in Penal Code section 1170.18, subdivision (a), nor was Health and
Safety Code section 11352, subdivision (a) added or amended by Proposition 47. It is
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thus not true that “[a] person currently serving a sentence for a conviction . . . of a felony
[of selling a controlled substance] . . . would have been guilty of a misdemeanor under
the act that added this section (‘this act’) had this act been in effect at the time of the
offense.” (Pen. Code, § 1170.18, subd. (a), italics added.) Proposition 47 left the
offense of a violation of Health and Safety Code section 11352, subdivision (a)
unchanged, and that offense is a felony. (Pen. Code, § 17, subd. (a); Health & Saf. Code,
§ 11352, subd. (a).) The trial court properly denied appellant’s Penal Code
section 1170.18, subdivision (a) petition for a recall of sentence.
We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (People v. Wende (1979) 25 Cal.3d 436, 443; Smith v.
Robbins (2000) 528 U.S. 259, 278-284.)
DISPOSITION
The order denying appellant’s petition for a recall of sentence is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JONES, J.
We concur:
EDMON, P. J.
ALDRICH, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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