Filed 4/4/18 P. v. Diaz 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sutter)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

RAY IGNACIO DIAZ,

Defendant and Appellant.
C084810

(Super. Ct. No. CRF091752)






Appointed counsel for defendant Ray Ignacio Diaz has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We find no errors that arguably would result in a disposition more favorable to defendant and therefore affirm the judgment.
BACKGROUND
In December 2009, defendant pleaded no contest to second degree robbery with a personal use of a firearm enhancement (Pen. Code, §§ 211, 12022.53, subd. (b)) and second degree burglary (§ 459). He also admitted a gang enhancement and that he was a minor at least 16 years old at the time of the offenses. (§ 186.22, subd. (b)(1)(A); Welf. & Inst. Code, § 707.) Defendant was sentenced as an adult to a stipulated aggregate sentence of 13 years eight months in state prison. Defendant did not appeal and the judgment became final.
In April 2017, defendant filed a petition to set aside his 2009 conviction. He based his petition on the enactment of Proposition 57, which prohibits prosecutors from directly filing charges against a minor in adult criminal court and instead requires a juvenile court judge to determine whether the minor can be prosecuted and sentenced as an adult. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, p. 141.) Relying on People v. Mendoza (2017) 10 Cal.App.5th 327 and the general rule that in the absence of an express retroactivity provision or clearly expressed intent, a statute will operate prospectively, the juvenile court denied defendant’s motion. Defendant appealed from the denial of his petition.
DISCUSSION
Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief, again claiming that the provisions of Proposition 57 should be applied retroactively to his case. We requested and received briefing on the retroactivity of Proposition 57 and the applicability of the Estrada rule.
Because defendant’s 2009 conviction was final at the time Proposition 57 was enacted, the Estrada rule does not apply. (People v. Smith (2015) 234 Cal.App.4th 1460, 1464-1465.) Nor do equal protection considerations require retroactive application of Proposition 57 to final judgments. (Id. at p. 1467.) A “ ‘statute ameliorating punishment for particular offenses may be made prospective only without offending equal protection, because the Legislature will be supposed to have acted in order to optimize the deterrent effect of criminal penalties by deflecting any assumption by offenders that future acts of lenity will necessarily benefit them.’ [Citation.]” (Id. at p. 1468.)
Defendant also claimed appellate counsel was ineffective for not challenging an unauthorized conviction and that under Proposition 47 he should be resentenced for misdemeanor shoplifting. These two claims are not cognizable.
Defendant cannot now challenge the validity of his 2009 plea. (§ 1237.5; Cal. Rules of Court, rule 8.104(a)(1).) Further, under Proposition 47, defendant is limited to the statutory remedy of petitioning for recall of sentence in the trial court once judgment is final. (People v. Noyan (2014) 232 Cal.App.4th 657, 672.)
Having undertaken an examination of the entire record, we 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/
Blease, Acting P. J.




/s/
Hull, J.