People v. Childs CA5

Filed 8/11/16 P. v. Childs CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent, F071207
v. (Kern Super. Ct. No. BF146358A)
JAMES LERNELL CHILDS,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael B.
Lewis, Judge.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
*Before Gomes, Acting P.J., Franson, J., and Smith, J.
Appointed counsel for defendant James Lernell Childs asked 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).) Finding no arguable error that would result in a
disposition more favorable to defendant, we affirm.
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.)
On September 24, 2013, defendant was convicted of possession of a controlled
substance (Health & Saf. Code, § 11350, subd. (a)). He was sentenced to six years in
prison.
On December 17, 2014, defendant filed a petition for resentencing pursuant to
Proposition 47, the Safe Neighborhoods and Schools Act (Pen. Code, § 1170.18).1 The
petition attested that defendant had no prior convictions for offenses under section 667,
subdivision (e)(2)(C)(iv). The prosecutor responded that defendant had a prior
conviction for attempted murder.
At the hearing on January 29, 2015, the prosecutor again stated that defendant did
not qualify. Defense counsel submitted, and the trial court found defendant ineligible for
resentencing under Proposition 47 due to a disqualifying prior conviction.
On March 11, 2015, defendant filed a notice of appeal.
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests that we review the record and
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal. 3d
436.) Defendant was advised of the right to file a supplemental brief within 30 days of
the date of filing of the opening brief. More than 30 days elapsed, and we received no
communication from defendant.
1 All statutory references are to the Penal Code unless otherwise noted.
2
We have conducted a review of the entire record and find no arguable issues.
Proposition 47 reduced certain nonviolent drug and theft offenses from straight felonies
or wobblers to misdemeanors. (People v. Shabazz (2015) 237 Cal. App. 4th 303, 308.)
Section 1170.18 provides a mechanism for those sentenced to such nonviolent drug and
theft offenses before the effective date of the act to petition for resentencing. Inmates
given felony sentences for nonviolent drug and theft offenses, however, may be ineligible
for resentencing if they have suffered certain specified prior offenses, referred to as
“super strikes.” (See §§ 1170.18, subd. (i), 667, subd. (e)(2)(C)(iv).) Among the
disqualifying super strikes: “Any homicide offense, including any attempted homicide
offense, defined in Sections 187 to 191.5, inclusive.” (§ 667, subd. (e)(2)(C)(iv)(IV).)
Here, defendant has a prior conviction for attempted murder as defined in sections 187
and 664. Accordingly, the trial court did not err in denying defendant’s petition for
resentencing. Furthermore, we see no other arguable error that would result in a
disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
3