Filed 1/29/16 P. v. Stewart CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115(a).


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



THE PEOPLE,                                                         B262412

         Plaintiff and Respondent,                                  Los Angeles County
                                                                    Super. Ct. No. SA023165
         v.

LAMONT STEWART,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
Mark E. Windham, Judge. Affirmed.
         Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and Noah P. Hill and
Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.


                            _______________________________________
                                    INTRODUCTION
       Defendant Lamont Stewart appeals from a trial court order denying relief under
Proposition 47, the Safe Neighborhoods and Schools Act. We conclude he was not
convicted of a qualifying offense and affirm. To the extent that defendant’s petition could
be deemed a request for resentencing under Proposition 36, he is ineligible for relief.
(Pen. Code, § 1170.126.)
                  FACTUAL AND PROCEDURAL BACKGROUND
       On September 5, 1995, defendant facilitated a drug deal between an undercover
officer and his co-defendant, Nora McDonald.1 The officer paid McDonald $10 for
0.09 grams of cocaine. On May 1, 1996, after a jury trial, defendant was convicted of
one count of aiding and abetting the sale of a controlled substance (Health & Saf. Code,
§ 11352, subd. (a)). The trial court sentenced him to a third-strike term of 28 years to
life. The sole issue raised on appeal was whether the sentence violated the Eighth
Amendment’s prohibition of cruel and unusual punishment. By unpublished opinion
dated December 12, 1997, we affirmed. (People v. Stewart (Dec. 12, 1997, B105284)
[nonpub. opn.], pp. 3–4.)
       On November 25, 2014, defendant filed a petition in pro per under Penal Code
section 1170.18, subdivision (a), requesting recall and resentencing under Proposition 47.
On January 14, 2015, the superior court summarily denied the petition because Health
and Safety Code section 11352 is not a reducible offense under the statute. Defendant
filed a timely notice of appeal and we appointed counsel to represent him.
       On July 15, 2015, defendant’s appellate counsel filed a brief in which he raised no
issues and asked us to review the record independently. (People v. Wende (1979)
25 Cal.3d 436.) On August 5, 2015, defendant filed a supplemental brief in which he
appears to argue that his conviction is not appropriate for third strike sentencing. In light

1
       The facts in this paragraph are taken from our opinion in defendant’s appeal from
his original conviction, People v. Stewart (Dec. 12, 1997, B105284) [nonpub. opn.],
pp. 2–3.



                                              2
of defendant’s supplemental brief, we ordered the parties to address whether we should
deem defendant’s filing a request for resentencing under Proposition 36 (Pen. Code,
§ 1170.126). The People filed a responsive letter brief; appointed appellate counsel
declined to do so. We conclude defendant’s conviction for violating Health and Safety
Code section 11352 is not a reducible offense under Proposition 47. We also conclude
defendant’s prior attempted-murder conviction renders him ineligible for relief under
Proposition 36. (Pen. Code, § 667, subd. (e)(2)(C)(iv).)
                                       DISCUSSION
       We have examined the entire record, as well as our opinion in defendant’s 1997
appeal. (People v. Stewart (Dec. 12, 1997, B105284) [nonpub. opn.].) We are satisfied
defendant’s current attorney has fully complied with his responsibilities and no arguable
issues exist in the appeal before us. (Smith v. Robbins (2000) 528 U.S. 259, 278–284;
People v. Wende, supra, 25 Cal.3d at p. 443.)
       In our review of the record, we noted that defendant was sentenced in May 1996.
While his appeal was pending, but one year before appointed counsel filed his opening
brief, the California Supreme Court issued its opinion in People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero), which held that in sentencing defendants
charged under the Three Strikes law, “a court may exercise the power to dismiss granted
in section 1385, either on the court’s own motion or on that of the prosecuting
attorney . . . . ” (Id. at p. 504.) The Court also held its opinion was retroactive. It stated:
“A defendant serving a sentence under the Three Strikes law . . . imposed by a court that
misunderstood the scope of its discretion to strike prior felony conviction allegations in
furtherance of justice pursuant to section 1385(a), may raise the issue on appeal, or, if
relief on appeal is no longer available, may file a petition for habeas corpus to secure
reconsideration of the sentence. [Citation.]” (Id. at p. 530, fn. 13.) By the time appellate
counsel in this case filed defendant’s opening brief a year later, numerous appellate courts
had applied Romero to pending appeals and remanded cases for sentence reconsideration
in light of that decision. (See., e.g., People v. Sotomayor (1996) 47 Cal.App.4th 382,



                                               3
392.) Yet appellate counsel did not ask this court for that remedy. Instead, counsel raised
only one issue: that the sentence violated the Eighth Amendment.
       While we affirm the superior court’s denial of Proposition 47 relief and conclude
defendant is ineligible for relief under Proposition 36, nothing in this opinion forecloses
defendant from filing an application in this court to recall the remittitur in his initial
appeal based on ineffective assistance of appellate counsel. (See Evitts v. Lucey (1985)
469 U.S. 387 [constitutional right to effective assistance of counsel in first appeal];
People v. Osband (1996) 13 Cal.4th 622, 664 [under Strickland v. Washington (1984)
466 U.S. 668-669, defendant must show a “ ‘reasonable probability’ ” that the outcome of
the appeal would have been different if counsel had raised the other claims]; Mapes v.
Coyle (6th Cir. 1999) 171 F.3d 408, 427–428 [listing factors]; Smith v. Robbins, supra,
528 U.S. at p. 288 [ineffective assistance “when ignored issues are clearly stronger than
those presented”]; In re Smith (1970) 3 Cal.3d 192, 201, 202 [habeas petition claiming
ineffective assistance where appellate counsel failed “to raise crucial assignments of
error” treated as application to recall remittitur].) We do not, however, take a position on
whether any such application, if filed by defendant, would be granted.




                                               4
                                       DISPOSITION
       The order denying defendant’s petition for recall and resentencing under
Proposition 47 is affirmed. Nothing in this opinion should be read to foreclose defendant
from filing an application in this court to recall the remittitur in his initial appeal based on
ineffective assistance of appellate counsel.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                          LAVIN, J.

WE CONCUR:




       EDMON, P. J.




       ALDRICH, J.




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