People v. Colbert CA2/3 ( 2021 )

Filed 4/6/21 P. v. Colbert CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B306282
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA029185
v.
GEORGE KENNETH COLBERT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
In 1996 a jury convicted defendant and appellant George
Kenneth Colbert of possession of a completed check with intent to
defraud in violation of then-applicable Penal Code section 475a.1
In a priors trial, the jury found true allegations that Colbert had
suffered three prior strikes under the Three Strikes law. The
trial court sentenced Colbert to 25 years to life in the state
prison.
In 2017, Colbert filed a petition for resentencing under
the Safe Neighborhoods and Schools Act, commonly known
as Proposition 47. (See § 1170.18, subds. (b), (g).) Colbert
apparently already was represented by court-appointed counsel
but filed the petition pro se. On May 9, 2017, the court filed a
written order denying Colbert’s petition. The court noted Colbert
was represented by counsel and, accordingly, was not permitted
to file documents pro se. Second, the court stated, a conviction
for violating section 475a is not one of the enumerated crimes
subject to Proposition 47 relief under section 1170.18, subdivision
(a).
Colbert attempted to appeal from the May 9, 2017 order.
After a considerable amount of procedural back-and-forth that we
need not detail here, on June 29, 2020, we granted Colbert relief
from default and permitted his notice of appeal, dated July 6,
2017, to be filed. The notice of appeal was filed on July 10, 2020.2
1 References to statutes are to the Penal Code. Section 475a
was repealed by Stats. 1998, ch. 468, § 5. The applicable code
section as of 1998 is section 475, subdivision (c). (See 2 Witkin &
Epstein, California Criminal Law (4th ed. 2020) Crimes Against
Property, § 178.)
2 In the meantime, in September 2020, the court granted
Colbert’s petition for recall and resentencing under section
1170.126, commonly known as Proposition 36. On October 6,
2020, the court resentenced Colbert to six years, gave him credit
2
We appointed counsel to represent Colbert on appeal.
After examining the record, counsel filed an opening brief raising
no issues and asking this court independently to review the
record under People v. Wende (1979) 25 Cal.3d 436 (Wende).
Counsel notified Colbert that he could file a supplemental brief
within 30 days.
On January 25, 2021, Colbert submitted a supplemental
brief. Colbert refers to “the right to effective assistance of
appellate counsel” and then argues the trial court’s May 9, 2017
order “summarily dismissed [his] petition for resentencing
without giving [him] an opportunity to present evidence in
mitigatince [sic].”
We have reviewed the entire record. The trial court
correctly ruled that a felony conviction under former section 475a
is not one of the crimes encompassed within Proposition 47. (See
Couzens et al., Sentencing California Crimes (The Rutter Group
2020) Appen. 25C.)
We are satisfied that Colbert’s counsel has fully complied
with his responsibilities and that no arguable issues exist.
(People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende, supra,
25 Cal.3d at p. 441.)
for time served, and ordered him released and placed on post-
release community supervision.
3
DISPOSITION
We affirm the trial court’s order denying George Kenneth
Colbert’s petition for resentencing under Proposition 47.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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