Filed 7/24/15 P. v. Hove CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062787

v.                                                                       (Super.Ct.No. FWV1402020)

LISA LYNNE HOVE,                                                         OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Brian S.

McCarville, Judge. Affirmed.

         Lisa Lynne Hove, in pro. per.; and Patrick M. Ford, under appointment by the

Court of Appeal, for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

                            FACTUAL AND PROCEDURAL HISTORY

         On September 5, 2014, in San Bernardino Superior Court case No. FWV1402020,

defendant and appellant Lisa Lynne Hove pled no contest to one count of violating

Health and Safety Code section 11352 (sale of a controlled substance). Pursuant to the
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plea agreement, the trial court sentenced defendant to seven years in county prison—a

middle term of four years as to the substantive offense and three years additional,

consecutive, for a prior drug sales convictions.

       On the same day, defendant admitted violating her active probation in case No.

FVA1300661, by suffering a new felony conviction, and received a concurrent sentence

of five years.

       Subsequently, defendant filed a petition to recall her sentence under Proposition

47 (Pen. Code, § 1170.18). On December 5, 2014, the trial court heard and denied

defendant’s petition because defendant failed to come within the statutory scheme of

Proposition 47.

       On January 20, 2015, the court received a letter from defendant indicating that she

wanted to appeal. The trial court treated the letter as a notice of appeal and ordered that

the appellate record be prepared.

                                      DISCUSSION

       After defendant appealed, and upon her request, this court appointed counsel to

represent her. On January 25, 2015, counsel filed a brief under the authority of People v.

Wende (1975) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a

statement of the case, a summary of the facts, and potential arguable issues, and

requesting this court to undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief. On

June 29, 2015, defendant filed a two-page handwritten letter brief in response to our



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request. In her letter brief, defendant, in essence, contends that the trial court erred in

denying her motion under Proposition 47.

       On November 4, 2014, California voters approved Proposition 47, the “Safe

Neighborhoods and Schools Act.” In sum, Proposition 47: (1) requires a misdemeanor

sentence instead of a felony sentence for certain drug possession offenses; (2) requires a

misdemeanor sentence instead of a felony sentence for the crimes of petty theft, receiving

stolen property, and forging/writing bad checks, when the amount involved is $950 or

less; (3) allows a felony sentence (excluding a defendant from a misdemeanor sentence)

for the crimes specified above if a defendant has a prior conviction listed under Penal

Code section 667, subdivision (e)(2)(C)(iv), or a prior conviction for an offense requiring

sex offender registration under Penal Code section 290; and (4) requires resentencing for

defendants serving felony sentences for the crimes specified above unless the trial court

finds an unreasonable public safety risk. (Voter Information Guide, Gen. Elec. (Nov. 4,

2014) text of Prop. 47, pp. 35, 70; see e.g., Pen. Code, §§ 459.5, subd. (a), 473, subd. (b),

476a, subd (b), 490.2, subds. (a), (b), 496, subd. (a), 666, subds. (a), (b); Health & Saf.

Code, §§ 11357, subd. (a), 11377, subds. (a), (b).) The initiative became effective on

November 5, 2014. (Cal. Const., art. II, § 10, subd. (a) [“an initiative statute or

referendum approved by a majority of votes thereon takes effect the day after the election

unless the measure provides otherwise”].)

       When assessing a claim under Proposition 47 on appeal, the first determination is

whether the defendant was convicted of a felony offense that qualifies for misdemeanor

sentencing. Here, defendant was convicted of sale of a controlled substance, to wit,

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cocaine, under Health and Safety Code section 11352. Section 11352 was not amended

by Proposition 47. Hence, defendant’s conviction is ineligible for resentencing under

Proposition 47. Defendant’s claim, therefore, is without merit.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                       MILLER
                                                                                        J.


We concur:


McKINSTER
                      Acting P. J.


KING
                                   J.




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