People v. Lopez CA4/2

Opinion

Filed 12/19/23 P. v. Lopez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E081242

v. (Super.Ct.No. RIF1801693)

JUAN LOPEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Dismissed.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant Juan Lopez appeals from the denial of his request made

pursuant to Penal Code section 1172.75 to be resentenced to a lower term and to have a

strike vacated.1

BACKGROUND

In August 2018, defendant was charged by information with a number of offenses,

including several related to possession of methamphetamine while armed with a loaded

and operable firearm.

In 2019, defendant pled guilty to violating subdivision (a) of section 11379 of the

Health and Safety Code.2 He also pled guilty to undertaking that offense while

personally armed with a handgun within the meaning of Penal Code section 12022,

subdivision (c). He admitted a strike prior (Pen. Code, §§ 667, 1170.12) and three prison

priors (Pen. Code, § 667.5, subd. (b)). In accordance with the plea agreement entered

into by the parties, the court sentenced defendant to an aggregate term of 16 years in state

prison, which included a one-year enhancement on each of his three prison priors.

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

2 Except in circumstances not relevant here, Health and Safety Code section 11379, subdivision (a), prohibits the transport or import into this state, the selling, furnishing, administering, and the giving away of certain controlled substances, including methamphetamine, or the making of an offer to undertake any of those acts.

2 In January 2021, the Legislature enacted section 1172.75.3 (Stats. 2021, ch. 728,

§ 3, (Sen. Bill No. 483), eff. Jan. 1, 2022.) The provision eliminated as legally invalid all

sentence enhancements set forth in section 667.5, subdivision (b), that were imposed

before January 1, 2020 (except those involving a prison prior for specified sexually

violent offenses). (§ 1172.75, subd. (a).)

In response to the new legislation, the trial court recalled defendant’s sentence and

struck the three years imposed on account of his prison priors, but denied his requests to

reduce his sentence as to the Health and Safety Code violation and to vacate the sentence

imposed for his prior strike. Defendant timely noticed this appeal.

DISCUSSION

Defendant’s appointed appellate counsel filed an opening brief that sets forth

statements of the case and facts but does not present any issues for adjudication. Counsel

asked this court to independently review the record on appeal, citing People v. Wende

(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 US. 738. Counsel also listed

the following issues to assist in the requested review of the record: (i) whether the trial

court abused its discretion in denying defendant’s motion to dismiss the strike prior,

citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and (ii) whether the trial

court abused its discretion when it did not reduce the upper-term sentence imposed for

Health and Safety Code violation.

3 At the time of its enactment, section 1172.95 was numbered 1171.1, but was renumbered effective June 30, 2022, with no substantive changes to the statute. (Stats. 2022, ch. 58, § 12.)

3 Upon receipt of the opening brief, we advised defendant and counsel that, because

the appeal is from the denial of a postconviction proceeding, this court is not required to

conduct an independent review of the record, and cited People v. Delgadillo (2022) 14

Cal.5th 216. We invited defendant to file any supplemental brief deemed necessary and

advised him that failure to do so might result in dismissal of the appeal as abandoned.

Defendant did not file a brief.

Neither defendant nor his counsel have presented an issue and upon our review of

the record, we do not find any error. Accordingly, we dismiss defendant’s appeal.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

CODRINGTON J.

MENETREZ J.