Filed 11/3/15 P. v. Jackson 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          B263162

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA039187)
         v.

AVALON D. JACKSON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Dorothy
L. Shubin, Judge. Affirmed.
         Avalon D. Jackson, in pro. per.; and Katja Grosch, under appointment by the
Court of Appeal, for Defendant and Appellant.
         No appearance for Plaintiff and Respondent.
                                      ____________________________
       In 1982, Avalon Jackson was convicted of robbery, rape, and forcible rape in
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concert. (Pen. Code, §§ 211, 261, 264.1.) In 1993, he was convicted of felony
possession of a firearm by a felon. (Former § 12021.)
       In 1999, Jackson was convicted of felony drug possession (Health & Saf. Code, §
11350) and given an indeterminate life sentence under the “Three Strikes” law (§§ 667,
1170.12).
       Last year, Jackson petitioned for resentencing pursuant to Proposition 36, the
Three Strikes Reform Act of 2012. (§ 1170.126.) The trial court denied the petition
because Jackson was ineligible for resentencing because he had suffered a prior
disqualifying conviction, a ruling we affirmed. (People v. Jackson (May 8, 2015,
B259996) [nonpub. opn.].)
       On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act, which reduces certain nonserious and nonviolent crimes, such as low-
level drug- and theft-related offenses, from felonies to misdemeanors. (People v.
Contreras (2015) 237 Cal.App.4th 868, 889-890.) A qualifying person serving a
sentence for a felony that was reclassified under Proposition 47 may petition the trial
court for a recall of sentence and request resentencing, which must be granted “unless the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.18, subds. (a)-(c).) As pertinent
here, Proposition 47 amended Health and Safety Code section 11350 to reclassify certain
controlled substance possession charges from felonies to misdemeanors. (Health & Saf.
Code, § 11350, subd. (a).)
       On March 5, 2015, Jackson filed a form petition for recall of his sentence, arguing
his felony drug possession offense was reclassified as a misdemeanor by Proposition 47.
The trial court denied the petition on the ground that Jackson had suffered a prior
disqualifying conviction. Jackson filed a timely notice of appeal.


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           Undesignated statutory references will be to the Penal Code.


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       We appointed counsel to represent Jackson on appeal, but after examination of the
record counsel filed an opening brief raising no issues and asking this court to review the
record independently pursuant to People v. Wende (1979) 25 Cal.3d 436. On July 8,
2015, we informed Jackson he had 30 days to submit any contentions or issues he wished
us to consider. We also directed his appointed counsel to send the record and opening
brief to him immediately.
       Jackson filed a supplemental brief in which he argues that denial of resentencing
without “some evidence” that he presents an unreasonable risk to the public safety
violates his due process rights. (See In re Lawrence (2008) 44 Cal.4th 1181, 1210
[parole may not be denied absent some evidence the inmate poses a current threat to
public safety].) Jackson argues he is eligible for resentencing because his 35-year-old
convictions do not support the conclusion that he poses a present risk to public safety.
       Resentencing under Proposition 47 is unavailable “to persons who have one or
more prior convictions for an offense specified in clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667 [certain serious or violent felonies] or for
an offense requiring [sex offender] registration pursuant to subdivision (c) of Section
290.” (§ 1170.18, subd. (i).) In 1982, Jackson was convicted of rape and rape in concert,
both of which are disqualifying offenses. (§ 290, subd. (c).) Relief under Proposition 47
is therefore unavailable to him.
       Jackson does not dispute that he suffered convictions for disqualifying offenses.
Instead, he argues resentencing pursuant to Proposition 47 is akin to parole, and just as
due process requires that parole be granted absent a finding that the prisoner presents an
unreasonable risk to public safety, due process requires that resentencing be granted
absent the same finding. The argument is without merit.
       The Fifth and Fourteenth Amendments guarantee substantive due process by
restricting government infringement upon certain liberty interests. (Reno v. Flores
(1993) 507 U.S. 292, 302.) A substantive due process analysis “must begin with a
careful description of the asserted right.” (Ibid.)



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        A prisoner has no right to a parole. (In re Schoengarth (1967) 66 Cal.2d 295,
300.)
        But the Legislature has granted prisoners the right to apply for parole (§ 3000),
and to have their applications evaluated by the Board of Parole Hearings and possibly
granted (§§ 3040, 5075, subd. (a)). Acting on these rights, the doctrine of substantive due
process requires that a prisoner’s application for parole be “duly considered” based upon
an individualized examination of all relevant factors. (In re Schoengarth, supra, 66
Cal.2d at p. 300; see In re Minnis (1972) 7 Cal.3d 639, 645-646.) Due consideration of
all relevant factors must include examination of “whether the inmate currently poses a
threat to public safety.” (In re Lawrence, supra, 44 Cal.4th at p. 1210.)
        A prisoner likewise has no right to resentencing, but the electorate has granted
some prisoners the right to apply for it. (§ 1170.18.)
        However, this right does not extend to prisoners convicted of rape. (§ 1170.18,
subd. (i).) On the contrary, the stated purpose of the voters in enacting Proposition 47
was to “[e]nsure that people convicted of . . . rape . . . will not benefit” from resentencing.
(Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70, italics added.)
Because the right to resentencing does not exist for these prisoners, the Fifth and
Fourteenth Amendments do not apply.
        Nor does the electorate’s decision to deny resentencing rights to prisoners
convicted of rape violate due process. Due process is satisfied when a rational
relationship exists “between the objectives of a legislative enactment and the methods
chosen to achieve those objectives.” (Cal. Rifle & Pistol Ass’n v. City of W. Hollywood
(1998) 66 Cal.App.4th 1302, 1330; see Reno v. Flores, supra, 507 U.S. at p. 302.) Here,
the stated objective of the voters in enacting Proposition 47 was “to ensure that prison
spending is focused on violent and serious offenses, to maximize alternatives for
nonserious, nonviolent crime, and to . . . . ensure[] that sentences for people convicted of
dangerous crimes like rape . . . are not changed.” (Ballot Pamp., Gen. Elec. (Nov. 4,
2014) text of Prop. 47, § 2, p. 70.) These objectives are directly and therefore rationally



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served by denial of resentencing to prisoners convicted of rape or serious felonies. Due
process is therefore satisfied.
       We have otherwise examined the entire record and conclude Jackson’s counsel
complied with the responsibilities set forth in People v. Kelly (2006) 40 Cal.4th 106 and
People v. Wende, supra, 25 Cal.3d at page 441. No arguable issues exist.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.




                                                              CHANEY, J.


We concur:



              ROTHSCHILD, P. J.



              JOHNSON, J.




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