Filed 11/9/15 P. v. Lyons CA3

                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C079183

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F00130)

         v.

JAMON TYREE LYONS,

                   Defendant and Appellant.




         “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).)” (People v. Rivera (2015) 233
Cal.App.4th 1085, 1089.) Proposition 47 created a resentencing provision, codified at
Penal Code section 1170.18,1 which provides that a person currently serving a sentence
for certain designated felonies may petition for recall of the sentence to reduce the felony




1   Undesignated statutory references are to the Penal Code.

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to a misdemeanor. Defendant Jamon Tyree Lyons appeals from an order denying his
petition to reduce his commitment conviction from a felony to a misdemeanor.
       Defendant’s petition was denied upon a determination that he was not eligible for
relief because the commitment offense was for violation of section 4573.6, possession of
a controlled substance in state prison, which is not one of the eligible offenses listed in
section 1170.18.
       Counsel was appointed to represent defendant on appeal. Counsel filed an
opening brief setting forth the facts of the case and requesting this court to review the
record and determine whether there were any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) Counsel advised defendant of his right to file a
supplemental briefing within 30 days of the date of filing of the opening brief.
       Defendant was granted leave to file a belated supplemental brief by which he first
cites In re Estrada (1965) 63 Cal.2d 740 and its progeny for the proposition that he is
entitled to retrospective application of the benefits of the changes in law promulgated by
Proposition 47. However, the principles of retroactivity enunciated in Estrada are
applicable only to judgments not yet final when the statute mitigating punishment takes
effect. (Estrada, at p. 745 [“The amendatory act imposing the lighter punishment can be
applied constitutionally to acts committed before its passage provided the judgment
convicting the defendant of the act is not final.”].) Defendant’s judgment of conviction
was final in July of 2012, well before the November 5, 2014, effective date of
Proposition 47. In any event, nothing in Proposition 47 reduces a conviction for violation
of section 4573.6 from a felony to a misdemeanor.
       Proposition 47 expressly does provide some retrospective relief, establishing a
procedure for persons currently serving sentences on certain felonies to petition to have
those felonies reduced to misdemeanors. (§ 1170.18.) Defendant’s second claim is that
the equal protection clauses of the United States and California Constitutions are violated
by the statute’s provision for reduction in punishment for violation of Health and Safety

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Code section 11350, possession of a controlled substance, but not for violation of
section 4573.6, possession of a controlled substance in state prison. However, “ ‘[t]he
first prerequisite to a meritorious claim under the equal protection clause is a showing
that the state has adopted a classification that affects two or more similarly situated
groups in an unequal manner.’ [Citations.]” (Cooley v. Superior Court (2002) 29 Cal.4th
228, 253.) Generally, “ ‘ “[p]ersons convicted of different crimes are not similarly
situated for equal protection purposes.” [Citations.] “[I]t is one thing to hold . . . that
persons convicted of the same crime cannot be treated differently. It is quite another to
hold that persons convicted of different crimes must be treated equally.” [Citation.]’
[Citation.]” (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565.) We recognize that
this is not an “absolute rule” and that a state cannot “arbitrarily discriminate between
similarly situated persons simply by classifying their conduct under different criminal
statutes. [Citation.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199, overruled on
other grounds in Johnson v. Department of Justice (2015) 60 Cal.4th 871.) The “inquiry
is not whether persons are similarly situated for all purposes, but ‘whether they are
similarly situated for purposes of the law challenged.’ [Citation.]” (Cooley, supra, 29
Cal.4th at p. 253.) Here, the two statutes promote two different purposes. Health and
Safety Code section 11350 (former Health and Safety Code section 11500) “is designed
to protect the health and safety of all persons within its borders by regulating the traffic in
narcotic drugs” (People v. Clark (1966) 241 Cal.App.2d 775, 780); section 4573.6, on the
other hand, serves the “necessary” purposes of “prison administration” (Clark, at p. 779).
Since the two statutes serve different purposes, defendant is not “similarly situated” to
one convicted of violation of Health and Safety Code section 11350, and there is no
violation of the equal protection clauses.
       Whether the protections afforded by Wende and the United States Supreme Court
decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal
from an order denying a petition brought pursuant to Proposition 47 remains an open

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question. Our Supreme Court has not spoken. The Anders/Wende procedures address
appointed counsel’s representation of an indigent criminal defendant in the first appeal as
a matter of right and courts have been loath to expand their application to other
proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551 [95 L.Ed.2d
539]; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th
952; People v. Serrano (2012) 211 Cal.App.4th 496; People v. Dobson (2008)
161 Cal.App.4th 1422; People v. Taylor (2008) 160 Cal.App.4th 304; People v. Thurman
(2007) 157 Cal.App.4th 36; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.)
Nonetheless, in the absence of published authority to the contrary, we will adhere to
Wende in the present case, where counsel has already undertaken to comply with Wende
requirements and defendant has filed a supplemental brief.
       Having undertaken an examination of the record, we find no arguable error that
would result in a disposition more favorable to defendant.
                                     DISPOSITION
       The judgment is affirmed.



                                                             RAYE            , P. J.



We concur:



      NICHOLSON             , J.



      MAURO                 , J.




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