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

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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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 

citations to the record, raises no issues, 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 count 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 47

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 47 

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.)

“The ultimate burden of proving section 1170.18 eligibility lies with the petitioner. 

[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 Petition

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 his 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, denying 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.)