Filed 9/8/23 P. v. Yates 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT THE PEOPLE, F086010 Plaintiff and Respondent, (Super. Ct. No. DF011989A) v. ANTHONY DAJUAN YATES, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Kern County. Chad A. Louie, Judge.

Brad J. Poore, 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 Levy, Acting P. J., Franson, J. and Snauffer, J.

STATEMENT OF APPEALABILITY This appeal is proper as it is made from an order after judgment affecting the substantial rights of the party. (Pen. Code,1 § 1237, subd. (b).)

STATEMENT OF THE CASE On June 8, 2015, Yates was charged by information with possession of a controlled substance in prison (marijuana) (§ 4573.6; count 1). It was also alleged as to count 1 that Yates had a prior “strike” conviction for a violation of section 192, subdivision (a), within the meaning of section 667, subdivisions (c) through (j) and section 1170.12, subdivisions (a) through (e).

On March 18, 2016, Yates was convicted by jury of count one, and the trial court found true the special allegation that Yates had a prior strike conviction.

On April 18, 2016, Yates was sentenced to the lower term of two years, doubled for the prior strike, on count 1. Yates’s 2009 conviction for a violation of section 4502, subdivision (a) in Lassen County was designated as the subordinate case, and a consecutive term of one year, one-third of the middle term, was imposed to run consecutively in that case. The total state prison term imposed was five years.

On February 15, 2023, Yates filed a petition for resentencing pursuant to Health and Safety Code section 11361.8, and on March 9, 2023, the petition was denied.

On March 24, 2023, Yates filed a timely notice of appeal from that denial.

STATEMENT OF FACTS2 On June 2, 2013, at approximately 2:30 p.m., officers at the Kern Valley State Prison conducted an unclothed body search of inmate Yates. During the search, officers discovered a bag of suspected marijuana which Yates had secreted in his anus. Yates

1 All statutory references are to the Penal Code unless otherwise stated.

2 Facts are taken from the April 18, 2016, probation officer’s report.

2. voluntarily submitted the contraband to the officers, and the matter was later referred to the Kern County District Attorney’s Office for further investigation.

APPELLATE COURT REVIEW Yates’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes the declaration of appellate counsel indicating Yates was advised he could file his own brief with this court. By letter on July 11, 2023, we invited Yates to submit additional briefing. To date, he has not done so. Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to Yates.

DISPOSITION The judgment is affirmed.

3.