Filed 11/23/15 P. v. Jackson 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C079588

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F01786)

         v.

RONALD DARDEN JACKSON, JR.,

                   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 Ronald Darden Jackson, Jr., 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 brief within 30 days of the date of filing of the opening brief.
       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
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 Supreme Court authority to the contrary, we believe it
prudent to adhere to Wende in the present case, where counsel has already undertaken to
comply with Wende requirements and defendant has filed a supplemental brief.
       In his supplemental brief, defendant claims the equal protection clauses of the
United States and California Constitutions are violated by section 1170.18’s provision for

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reduction in punishment for violation of Health and Safety 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, “ ‘ “Persons 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 of 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




                                              3
one convicted of violation of Health and Safety Code section 11350, and there is no
violation of the equal protection clauses.2
       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 (order) is affirmed.



                                                             RAYE          , P. J.



We concur:



         HOCH               , J.



         RENNER             , J.




2  Hence, defendant’s conclusory reliance on People v. Noyan (2014) 232 Cal.App.4th
657 is unavailing, as there the two statutes at issue served the same purpose—the
prevention of “knowingly bringing contraband into a custodial facility”—and thus those
persons charged with committing the crimes were determined to be “similarly situated”
(id. at p. 667).

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