Filed 8/19/14 P. v. Ashanti CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE

THE PEOPLE,                                                          B249709
                                                                     (Los Angeles County
                   Plaintiff and Respondent,
                                                                     Super. Ct. No. BA118005)
         v.
ASKIA SANKOFA ASHANTI,
                   Defendant and Appellant.

                                                                     B252733
In re ASKIA SANKOFA ASHANTI,
                           On Habeas Corpus.

                                                                     B253241
ASKIA SANKOFA ASHANTI,
                                       Petitioner,
         v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
                                   Respondent;
THE PEOPLE,
                       Real Party in Interest.


         APPEAL from an order of the Superior Court of Los Angeles County. William C.
Ryan, Judge. Affirmed.
         ORIGINAL PROCEEDINGS; Petition for Writ of Habeas Corpus and Petition for
Writ of Mandate. Petitions denied.
       Askia Sankofa Ashanti, in pro. per; Jonathan B. Steiner and Richard B. Lennon,
under appointment by the Court of Appeal, for Defendant and Appellant in No. B249709.
       Askia Sankofa Ashanti, in pro. per., for Defendant and Appellant in No. B252733
and Petitioner in No. B253241.
       No appearance for Plaintiff and Respondent in Nos. B249709 and B252733 and
for Real Party in Interest in No. B253241.
       No appearance for Respondent in No. B253241.
                     _______________________________________

       Askia Ashanti appeals from the trial court’s denial of his petition under
Proposition 36 (Pen. Code, § 1170.126) to reduce his “Three Strikes” sentence of
25 years-to-life. He also petitions this court for writs of habeas corpus and mandate.
The appeal and the writ petitions raise the same three issues: (1) the trial court lacked
jurisdiction to try his third strike offense; (2) denying him a sentence reduction under
Proposition 36 violates the double jeopardy clause of the United States and California
constitutions; and (3) denies him his rights to equal protection and due process of law.
We ordered the appeal and the petitions considered together.
       We affirm the order of the trial court and we deny the petitions for habeas corpus
and mandate.
                        FACTS AND PROCEEDINGS BELOW
       In 1980, Ashanti was convicted of murder as a juvenile. In 1988, Ashanti was
convicted of rape. In 1996, Ashanti was convicted of joy riding (Veh. Code, § 10851,
subd. (a)) and sentenced to 25 years-to-life under the Three Strikes Law (former
Pen. Code, § 1170.12, subd. (c)(2).)1
       In November 2012, California voters enacted Proposition 36 (the Three Strikes
Reform Act of 2012). As a general rule, under the Three Strikes Law as amended. a
defendant with two prior serious or violent felony convictions who is convicted of a third
felony that is non-serious and non-violent will no longer automatically face an

1
       All statutory references are to the Penal Code.

                                              2
indeterminate term of 25 years to life in prison. (§ 1170.12, subd. (c)(2)(C).)2 Instead,
these offenders will be given the same sentence as offenders with two strikes under the
former law. Proposition 36 also provides a procedure by which a person presently
serving an indeterminate life sentence imposed pursuant to the former Three Strikes Law
may petition to have that sentence recalled and to be resentenced as a second-strike
offender if the current offense is not a serious or violent felony and the person is not
otherwise disqualified. (§ 1170.126, subd. (e)(3).) A person is disqualified if, among
other things, the person has a prior conviction of murder. (§§ 1170.126, subd. (e)(3),
1170.12, subd. (c)(2)(C)(iv)(IV).) Even if the person is not otherwise disqualified, the
court may deny the petition if it determines that a reduced sentence would pose an
unreasonable risk of danger to public safety. (§ 1170.126, subd. (g)(3).) Accordingly,
resentencing under section 1170.126 is discretionary even if the offender meets the
objective criteria set out in section 1170.126, subdivision (e).
       In May 2013, Ashanti petitioned for a reduction of his 25 years-to-life sentence
under section 1170.126. The trial court denied the petition on the ground that Ashanti’s
prior murder conviction made him ineligible for resentencing under sections 1170.126,
subdivision (e)(3) and 1170.12, subdivision (c)(2)(C)(iv)(IV). Ashanti filed a timely
appeal.3
       We appointed counsel to represent Ashanti on appeal. After examining the record,
counsel filed a “Wende” brief raising no issues and requesting that we independently

2
         Even if the current felony is not “serious” or “violent,” a defendant must
still serve an indeterminate term of 25 years-to-life if any of the following is true:
(1) the current felony is an enhanced “controlled substance charge”; (2) the current
felony is a sex offense or requires registering as a sex offender; (3) the current felony
was completed while armed with a firearm or with intent to cause great bodily injury;
or (4) any of the person’s prior felony convictions is for a crime listed in section 1170.12,
subdivision (c)(2)(C)(iv). (§ 1170.126, subd. (e)(3).)
3
        The question whether a defendant has the right to appeal the denial of a petition
under section 1170.126 when the trial court determined that he did not meet the threshold
eligibility requirements for resentencing is currently pending before our Supreme Court.
(Teal v. Superior Court, review granted July 31, 2013, S211708.) In any case, Ashanti’s
claims are reviewable through his writ petitions.
                                              3
review the record. (People v. Wende (1979) 25 Cal.3d 436.) We directed appointed
counsel to immediately send the record on appeal and a copy of the opening brief to
Ashanti and we notified him that within 30 days from the date of the notice he could
submit by brief or letter any grounds of appeal, contentions or arguments he wished us to
consider. Ashanti filed two supplemental briefs. He does not deny that he is ineligible
for resentencing under section 1170.126 because of his prior murder conviction but raises
jurisdictional and constitutional issues that we discuss below.

                                      DISCUSSION
       A.     The Appeal
       We have examined the entire record and are satisfied that Ashanti’s attorney
has fully complied with his responsibilities and that no arguable issue exists. (People v.
Wende, supra, 25 Cal.3d at p. 441.) We respond below to the issues raised by Ashanti in
his supplemental briefs and writ petitions.

       B.     The Writ Petitions
              1.     Jurisdiction
       Ashanti argues that his joy riding conviction should be overturned because his
trial took place before a judge who normally hears civil cases and in a courtroom in
the Stanley Mosk Courthouse where civil trials are normally held instead of in the
Clara Shortridge Foltz Courthouse where criminal trials are normally held. He cites
section 681 which states: “No person can be punished for a public offense, except upon a
legal conviction in a court having jurisdiction thereof.” He also relies on Andrews v.
Superior Court (1946) 29 Cal.2d 208, 213, which held that the then-existing Police
Courts did not have jurisdiction to enforce juvenile court law.
       Andrews does not apply here because Ashanti is not a juvenile and Police Courts
no longer exist in California.
       Article VI of the California Constitution provides that “[i]n each county there is a
superior court of one or more judges.” Our Supreme Court has interpreted this provision
to mean “‘that jurisdiction is vested by the Constitution in the court and not in any


                                              4
particular judge or department thereof; and that whether sitting separately or together,
the judges hold but one and the same court. [Citation.]’” (People v. Konow (2004)
32 Cal.4th 995, 1018.) Under Rule 10.950 of the California Rules of Court, the presiding
judge of a superior court having more than three judges may designate judges “primarily
to hear criminal cases.” However, if the business of the court requires it, the presiding
judge “may designate additional judges under the direction of the supervising judge” to
hear criminal cases. (Cal. Rules of Court, rule 10.951(d).) This is apparently what
happened in Ashanti’s joy riding case.
              2.     Double Jeopardy
       Ashanti next argues that barring him from resentencing under Proposition 36
because of his prior murder conviction violates the double jeopardy clauses of the
California and United States Constitutions because it punishes him a second time for the
murder he committed as a juvenile.
       Ashanti is correct in his assertion that the double jeopardy clause protects against
multiple punishments for the same offense. (North Carolina v. Pearce (1969) 395 U.S.
711, 717.) The flaw in his argument is that he is not being punished again for his 1980
murder conviction. He is being punished for the Vehicle Code violation he committed
16 years later. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1519-1520.) His
ineligibility for resentencing under Proposition 36 is not a new “punishment” for a past
homicide.
              3.     Equal Protection
       Ashanti contends California has no rational basis for excluding persons serving
current prison terms for non-serious, non-violent crimes solely because of their
prior convictions of murder or certain other serious or violent felonies. We disagree.
The decision to treat crimes distinctly as to sentencing consequences generally
does not violate equal protection of the law. (See, e.g., People v. Floyd (2003) 31 Cal.4th
179, 188 [treating those convicted of drug offenses differently based on the date of their
conviction does not entail an equal protection violation].) The classifications drawn by
Proposition 36 decrease the likelihood that the offenders whose sentences are reduced or

                                             5
who are released due to its provisions will pose an unreasonable risk of danger to the
public. (People v. Yearwood (2013) 213 Cal.App.4th 161, 179; see People v. Edwards
(2002) 97 Cal.App.4th 161, 164-165 [public safety considerations justify treating “third
strike” offenders more harshly than “two strike” offenders].) Furthermore, denying the
possibility of resentencing to offenders with prior murder convictions is rationally related
to the legitimate public objective of discouraging recidivism. (See People v. Kilborn
(1996) 41 Cal.App.4th 1325, 1329 [one purpose of the Three Strikes law is to reduce
recidivism].)
                4.    Due Process
       Finally, Ashanti argues the exclusion of offenders with prior convictions for
murder violates substantive due process because there is no rational basis to exclude such
offenders from possible resentencing because the trial court can weed out those who pose
an unreasonably high risk to the public through the criteria of section 1170.126,
subdivision (f). But, as we explained above, the state has a rational basis for excluding
offenders with prior murder convictions from being considered for resentencing under the
discretionary criteria of subdivision (f).




                                             6
                                    DISPOSITION
      The order denying Ashanti’s petition for resentencing is affirmed. Ashanti’s
petitions for a writ of habeas corpus and mandate are denied.
      NOT TO BE PUBLISHED.




                                                ROTHSCHILD, P. J.
We concur:



             CHANEY, J.



             MILLER, 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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