Filed 1/24/22 P. v. Wright CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FLOYD HOWARD WRIGHT,

Defendant and Appellant. F079959

(Kern Super. Ct. No. MF006036A)



### OPINION

THE COURT *

APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.

- ooOoo

-

* Before Levy, Acting P. J., Franson, J. and Peña, J.2

. INTRODUCTION
Appellant Floyd Howard Wright filed a petition to reduce his felony conviction to

a misdemeanor. The court denied relief because his offense was not eligible for
reduction pursuant to the provisions of Proposition 47 and Penal Code section 1170.18. 1

On appeal, his appellate counsel has filed a brief that summarizes the facts with

citation s to the record, raises no is sues, and asks this court to independently review the

record. ( People v. Wende (1979) 25 Cal.3d 436

. ) We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
On March 7, 2003, an information was filed in the Superior Court of Kern County
charging appellant with cou nt 1, felony possession of marijuana by an inmate in state
prison without proper authorization on December 2, 2002 (Pen. Code, § 4573.6), with
three prior strike convictions.
On April 18, 2003, appellant pleaded guilty to felony count 1 as charged.
On May 16, 2003, the court granted appellant’s request to dismiss two of the prior
strike allegations. The court imposed the midterm of three years, doubled to six years as
the second strike term, consecutive to the sentence he was already serving.

PROPOSITION 4 7
Proposition 47 was approved in November 2014, and “ makes certain drug

- and

theft

- related offenses misdemeanors, unless the offenses were committed by certain
ineligible defendants. These offenses had previously been designated as either felonies

or wobblers (crimes that can be punished as either felonies or misdemeanors).” ( People

v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Proposition 47 “ also added

... section

1170.18, which permits those previously convicted of felony offenses that Proposition 4 7
reduced to misdemeanors to petition to have such felony convictions resentenced or

1 All further citations to “section 1170.18” are to the statute in the Penal Code.3

.

redesignated as misdemeanors. ” ( People v. Buycks (2018) 5 Cal.5th 857, 871 , fn.

omitted .)

“T he ultimate burden of proving section 1170.18 eligibility lies with the petiti oner. [Citation.]” ( People v. Romanowski (2017) 2 Cal.5th 903, 916.) In reviewing a section

1170

. 18 petition, “the court has no obligation to hold an evidentiary hearing where the
petitioner ’ s eligibility or ineligibility for relief is evident as a matter of law

.... ” ( People

v. Simms (2018) 23 Cal.App.5th 987, 993.) “In many cases, the threshold issue of
eligibility for relief

... may be determined as a matter of law from the uncontested
allegations of the petition or from the record of conviction. [ Citation.] ” ( Ibid .)
Appellant’s P etition
On July 1, 2019, appellant filed , in pro. per., a petition for the court to resentence
his felony conviction for possession of marijuana by an inmate to a misdemeanor,

pursuant to the provisions of section 1170.18, subdivision (a) . Appellant waived his
appearance at the hearing on the petition.
On July 23, 2019, the court held a hearing on the petition and continued the
matter. Appellant was represented by the public defender.
On August 13, 2019, the court held another hearing on the petition; the public
defender again represented appellant. The court denied the petition

. On September 11, 2019, appellant filed a notice of appeal. On May 22, 2020, this
court granted appellant’s petition to construe the notice of appeal to be from the trial
court’s denial of his section 1170.18 petition for resentencing.

DISCUSSION
As noted above, appellant’s counsel has filed a Wende brief with this court. The

brief also includes the declaration of appellate counsel indicating that appellant was

advised he could file h is own brief with this court. By letter on March 23, 2020, we

invited appellant to submit additional briefing. To date, he has not done so.4

.

After independent review of the record, we find that no reasonably arguable
factual or legal issues exist. 2

DISPOSITION
The court’s order of October 2, 2019, denyin g appellant’s petition for
resentencing, is affirmed.

2 Appellant was convicted of violating section 4573.6, an offense that was not amended by Proposition 47 or among the offenses expressly listed in section 1170.18 as eligible for resentencing from a felony to a misdemeanor . (§ 1170.18, subds. (a), (b).) It is also settled that possession of less than 28.5 grams of marijuana in prison remains a criminal violation of section 4573.6. ( People v. Raybon (2021) 11 Cal.5th 1056, 1060.)