Filed 8/29/16 P. v. Cooper CA2/7

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B267783

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA027451)
         v.

CRAIG COOPER,

         Defendant and Appellant.




                   APPEAL from an order of the Superior Court of Los Angeles County,
Laura L. Laesecke, Judge. Affirmed.


                   Emily Lowther Brough, under appointment by the Court of Appeal, for
Defendant and Appellant.


                   No appearance for Plaintiff and Respondent.


                                           ______________________
                 FACTUAL AND PROCEDURAL BACKGROUND


       Craig Cooper petitioned in February 2015 to recall his current felony sentence for
violating Health and Safety Code section 11350, subdivision (a), possession of cocaine,
and to request resentencing as a misdemeanor under Proposition 47, the Safe
Neighborhoods and Schools Act (Pen. Code, § 1170.18).1 On March 13, 2015 the trial
court denied the petition, finding Cooper was ineligible for resentencing under
Proposition 47. On October 30, 2015 Copper filed a notice of appeal from the trial
court’s March 13, 2015 order.2


                                      DISCUSSION


       We appointed counsel to represent Cooper on appeal. After examining the record,
counsel filed an opening brief raising no issues. On May 9, 2016 we advised Cooper he
had 30 days to submit any arguments or raise any issues he wanted us to consider. The
same day, we received an eight-page, hand-printed supplemental brief with attached
exhibits. Cooper appears to argue that the record does not support the trial court’s
finding Cooper is ineligible for Proposition 47 relief and that section 1170.18 is
ambiguous and unconstitutional.
       “Proposition 47, an initiative measure the electorate passed in November 2014,
reduced certain drug-related and property crimes from felonies to misdemeanors. The
measure also provided that, under certain circumstances, a person who had received a
felony sentence for one of the reduced crimes could be resentenced and receive a


1
       Undesignated statutory references are to the Penal Code.
2
       Cooper’s notice of appeal was received by the superior court clerk’s office, but not
filed. On October 28, 2015 we granted Cooper relief from default for failure to file a
timely notice of appeal.
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misdemeanor sentence.” (People v. Morales (2016) 63 Cal.4th 399, 403.) “‘Proposition
47 created a new resentencing provision, [Penal Code] section 1170.18, under which
certain individuals may petition the superior court for a recall of sentence and request
resentencing.’” (People v. Smith (2015) 234 Cal.App.4th 1460, 1468-1469.)
“Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the
offenses were committed by certain ineligible defendants.” (People v. Rivera (2015) 233
Cal.App.4th 1085, 1091; see People v. Davis (2016) 246 Cal.App.4th 127, 134
[Proposition 47 “‘reduces penalties for certain offenders convicted of nonserious and
nonviolent property and drug crimes’ and ‘allows certain offenders who have been
previously convicted of such crimes to apply for reduced sentences’”], review granted
July 13, 2016, S234324.) Among these offenses is former Health and Safety Code
section 11350, felony possession of a controlled substance. As amended by Proposition
47, and subject to certain exceptions, possession of a controlled substance is now a
misdemeanor, which “shall be punished by imprisonment in a county jail for not more
than one year.” (Health & Saf. Code, § 11350.)
       One of the exceptions to Proposition 47 relief applies here. Section 1170.18,
subdivision (i), provides that the provisions of Proposition 47 do not apply to persons
previously convicted of certain violent felonies listed in section 667, subdivision
(e)(2)(C)(iv), and known as “super strikes” (People v. Johnson (2015) 61 Cal.4th 674,
681-682; People v. Jefferson (2016) 1 Cal.App.5th 235, 242), or to offenses requiring
registration as a sex offender under section 290. Cooper has two disqualifying
convictions: 1985 convictions for lewd and lascivious acts with a child under the age of
14 (§ 288) and sexual penetration with a foreign object by force (§ 289, subd. (a)(1)).
(Cooper v. Superior Court (Aug. 19, 2013, B250388) [nonpub. opn.]; People v. Cooper
(Dec. 11, 1997, B106716) [nonpub. opn].) Therefore, the trial court correctly ruled that
Cooper was ineligible for resentencing under Proposition 47.




                                             3
       We have examined the record and are satisfied that appellate counsel for Cooper
has fully complied with her responsibilities and that there are no arguable issues. (See
Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People
v. Kelly (2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 441.)


                                     DISPOSITION


       The order is affirmed.




              SEGAL, J.


We concur:




              PERLUSS, P. J.




              GARNETT, J.*




*
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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