People v. Thigpen CA3 ( 2021 )

Filed 12/14/21 P. v. Thigpen 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C092132
Plaintiff and Respondent, (Super. Ct. No.
STKCRFE20170011197)
v.
AARON ANTHONY THIGPEN,
Defendant and Appellant.
Appointed counsel for defendant Aaron Anthony Thigpen filed an opening brief
setting forth the facts of the case and asking this court to review the record to determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436(Wende).) After reviewing the entire record, we affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
FACTS AND HISTORY OF THE PROCEEDINGS
While defendant was incarcerated in a state prison, a correctional officer
discovered that defendant had a latex bindle containing marijuana inside his mouth,
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weighing 3.01 grams. Defendant was charged with one count of unlawful possession of a
controlled substance while incarcerated in a state prison (Pen. Code, § 4573.6 [statutory
section citations that follow are to the Penal Code]). It was further alleged that defendant
had previously suffered a conviction for a strike offense (§§ 667, subd. (d), 1170.12,
subd. (b)). The complaint was later amended to strike the reference to section 4573.6 and
replace it with section 4573.8, which prohibits the unlawful possession of cannabis while
incarcerated in a state prison, and defendant pleaded guilty to that count. In exchange for
defendant’s plea, the remaining allegation was stricken.
The trial court sentenced defendant to the lower term of 16 months in state prison.
The court ordered defendant to pay a conviction assessment of $30 (Gov. Code,
§ 70373), a court operations assessment of $40 (§ 1465.8), a restitution fine of $300
(§ 1202.4, subd. (b)), an additional $300 parole revocation fine, which was stayed
pending successful completion of parole (§ 1202.45), and a county administrative fee of
$30.
Defendant filed a pro per “Motion Requesting Relief Under Proposition 64 for the
Modification of Sentence Imposed for Violation of Penal Code section 4573.6.”
Defendant cited People v. Raybon (2019) 36 Cal.App.5th 111, review granted August 21,
2019, S256978, which held that possession of marijuana in a state prison was no longer a
crime. This holding was subsequently reversed by our Supreme Court in People v.
Raybon (2021) 11 Cal.5th 1056. The superior court denied defendant’s motion without
comment.
Defendant filed a timely notice of appeal. Defendant filed an opening brief on
February 1, 2021. On June 1, 2021, he filed a motion asking this court to strike the
opening brief so that he could file a new opening brief. This court granted the motion.
On July 16, 2021, defendant filed a new opening brief, asking to construe the brief as
being a petition for writ of habeas corpus. This court rejected the brief for
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nonconformance. Counsel subsequently filed an opening brief pursuant to Wende, supra,
25 Cal.3d 436.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts and procedural history of the case and requests this court to
review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a
supplemental brief within 30 days from the date the opening brief was filed. More than
30 days have elapsed, and defendant has not filed a supplemental brief. Having
undertaken an examination of the entire record pursuant to People v. Wende, we find no
arguable error that would result in a disposition more favorable to defendant.
Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
HOCH, J.
KRAUSE, J.
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