Filed 2/3/21 P. v. Schuster CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B305314
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA074472)
v.
ZACHARY APOLLO
SCHUSTER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Daviann L. Mitchell, Judge. Affirmed.
Wayne C. Tobin, 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, Daniel Rogers, Adrianne S. Denault and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
**********
In August 2018, defendant and appellant Zachary Apollo
Schuster was charged with bringing contraband (marijuana) into
a jail facility (Pen. Code, § 4573, subd. (a); count 1) and lewd
conduct (§ 647, subd. (a); count 2). It was further alleged
defendant had suffered a 2014 strike prior (making terrorist
threats) within the meaning of the “Three Strikes” law.
Defendant agreed to plead no contest to count 1 in
exchange for a dismissal of count 2 and a term of four years (two-
year low term doubled due to the strike). Defendant signed a
written advisement of rights form and admitted his strike prior.
The court accepted defendant’s waiver of rights on the record.
Counsel stipulated to a factual basis for the plea. The court
imposed a four-year state prison term in accordance with the plea
agreement.
In January 2020, defendant filed a petition to dismiss or
alternatively for resentencing pursuant to Health and Safety
Code section 11361.8.
The hearing on defendant’s petition was held February 26,
2020. Defendant waived his appearance and was represented by
appointed counsel. The trial court denied the petition, finding
defendant did not qualify for relief because Proposition 64 did not
decriminalize the bringing of marijuana into penal institutions.
Proposition 64, the Control, Regulate and Tax Adult Use of
Marijuana Act, was adopted by the voters on November 8, 2016,
and went into effect the next day. (People v. Perry (2019)
32 Cal.App.5th 885, 888.) Among other things, Proposition 64
added Health and Safety Code section 11361.8, which provides, in
pertinent part, that “[a] person currently serving a sentence for a
conviction, whether by trial or by open or negotiated plea, who
would not have been guilty of an offense, or who would have been
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guilty of a lesser offense under the Control, Regulate and Tax
Adult Use of Marijuana Act had that act been in effect at the time
of the offense may petition for a recall or dismissal of sentence
before the trial court that entered the judgment of conviction in
his or her case to request resentencing or dismissal.” (§ 11361.8,
subd. (a), italics added.)
Health and Safety Code section 11361.8 went into effect on
November 9, 2016, almost two years before defendant was
charged with a violation of bringing marijuana into a jail facility.
At no time during the proceedings in the trial court did defendant
make any argument that Proposition 64 applied to the offense of
bringing marijuana into a jail facility. He cannot raise the
argument for the first time on appeal. Defendant cites no
authority for concluding he falls within the scope of the statutory
provision, the plain language of which applies to individuals who
were convicted prior to enactment of section 11361.8.
DISPOSITION
The trial court’s order denying defendant’s petition is
affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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