Filed 12/30/19 P. v. Colbourn 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

ORRIN TYLER COLBOURN,

Defendant and Appellant.

C088433

(Super. Ct. No. 18CF00368)

Appointed counsel for defendant Orrin Tyler Colbourn has filed an opening brief setting forth the facts of the case and 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.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal is from the denial of two postconviction motions.

A jury found defendant guilty of carrying a concealed dirk or dagger. The trial court found true the allegations defendant had served four prior prison terms. On May 31, 2018, the court sentenced defendant to the upper term of three years, to be served in county prison (Pen. Code, § 1170, subd. (h)(2)) and imposed one-year terms on each of the four prison priors, with one term stayed, for a total sentence of six years in jail. On the issue of whether there would be a term of mandatory supervision, the court found that given defendant’s lack of cooperation with the sentencing process and his past poor performance on supervision, the presumption for supervision had been overcome and ordered the term served without supervision. The court indicated defendant could request a recall of the sentence within 120 days to determine whether there had been a change in circumstances indicating supervision was appropriate. Defendant separately appealed the judgment; it is currently pending before this court.

On August 22, 2018, defendant filed a motion to recall his sentence and impose a period of mandatory supervision. The trial court recalled defendant’s sentence, requested a supplemental probation report, and set the matter for hearing.

While in custody, defendant received a number of disciplinary write-ups for violating rules of the facility, specifically exposing himself to female deputies. He also refused to cooperate with the investigations of those violations.

On October 5, 2018, defendant filed a Petition for Writ of Habeas Corpus, claiming the trial court had imposed an illegal sentence because carrying a dirk or dagger is a misdemeanor offense under Proposition 47. On October 17, 2018 defendant also filed a petition for reclassification of his offense as a misdemeanor under section 1170.18.

The trial court heard and denied the petition for reclassification, finding the offense of carrying a concealed dirk or dagger was not eligible for reclassification under section 1170.18. The court also denied the request for mandatory supervision, finding there had not been a change of circumstances and it did not appear that defendant would comply with terms and conditions of supervision, as he was not complying the rules of the jail.

Defendant appeals from the denial of these motions.

DISCUSSION

Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief raising several issues that are difficult to decipher. He appears to argue that Proposition 47 mandates that his petition for resentencing be granted. He also references Proposition 57, section 4019, ineffective assistance of counsel for failing to file a Pitchess motion, and a perceived Fourth Amendment violation. He demands a new trial and that his case be “reversed or dismissed.”

Proposition 47, the Safe Neighborhoods and Schools Act, “reclassified as misdemeanors certain drug- and theft-related offenses that previously were felonies or wobblers.” (People v. Valencia (2017) 3 Cal.5th 347, 355; § 1170.18, subds. (a), (b).) Defendant was not convicted of any drug or theft related offenses. Proposition 47 does not apply to his case. (See Valencia, at p. 360 [Proposition 47 “did not purport to alter the sentences for felonies other than those that the measure reduced to misdemeanors”].)

Defendant’s reliance on Proposition 57, the Public Safety and Rehabilitation Act of 2016, is likewise misplaced. Proposition 57 added a provision to California’s Constitution that reads: “Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1).) The newly added constitutional provision defines “the full term for the primary offense” as “the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.” (Id. art. I, § 32, subd. (a)(1)(A).) Under the plain language of this provision, it does not apply to defendant’s petition for resentencing; Proposition 57 simply deals with parole consideration, not resentencing on any underlying convictions.

As to defendant’s references to custody credits, ineffective assistance of counsel, Fourth Amendment violations, and other complaints about the fairness and propriety of his trial and subsequent conviction, these claims are not properly before us on this appeal from postjudgment orders. The propriety of defendant’s conviction was not at issue in the resentencing or recall petitions; accordingly, those issues are not proper subjects of this particular appeal.

We have undertaken an examination of the entire record as it relates to the postjudgment orders at issue here and find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Murray, Acting P. J.

/s/

Krause, J.