Filed 12/15/17 P. v. Smith 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yolo)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

KEITH SMITH,

Defendant and Appellant.
C083567

(Super. Ct. No. CRF201237303)




Appointed counsel for defendant Keith Smith filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Thereafter, defendant filed a supplemental brief. After reviewing defendant’s supplemental brief and the entire record, we affirm.
BACKGROUND
We provide the following brief description of the background of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On December 11, 2012, defendant was charged by information with multiple drug and related crimes and enhancements. As relevant here, defendant was charged with possession for sale of a controlled substance (cocaine base) (Health & Saf. Code, § 11351.5; count 14), and possession of a firearm by person previously convicted of a felony (Pen. Code, § 29800, subd. (a)(1); count 16). As to count 14, it was alleged that defendant had six prior drug-related convictions (Health & Saf. Code, § 11370.2, subd. (a)), and was personally armed with a firearm during the commission of the offense (§ 12022, subd. (c)).
Defendant pleaded no contest to counts 14 and 16, with a stipulated maximum state prison term of 21 years (five years on count 14, plus four years for the arming enhancement, plus four consecutive three-year enhancements for the prior drug convictions, with sentence on count 16 to run concurrent and all remaining charges to be dismissed). The trial court sentenced him to the agreed 21-year state prison term and imposed various fines and fees.
In his prior appeal, defendant’s appellate counsel requested, pursuant to Wende, we review the record and determine whether there were any arguable issues on appeal. After undertaking an examination of the entire record, we found no arguable issue and affirmed the judgment in an opinion issued on October 27, 2014.
The remittitur was issued on December 29, 2014. It was filed in the trial court the following day. On January 17, 2015, defendant, proceeding pro se, filed an ex parte motion requesting that his five-year sentence on count 14 be modified based on the amendment to Health and Safety Code section 11351.5, which took effect on January 1, 2015, after he was sentenced, and which reduced the punishment for a violation of that section from three, four, or five years in custody to two, three, or four years in custody. (People v. Keith (2015) 235 Cal.App.4th 983, 985.) The People filed a written opposition, arguing that defendant was not entitled to the benefit of the amendment because his sentence became final prior to the effective date of the amendment. At the hearing on the motion, defense counsel agreed with the People and the trial court denied the motion. This timely appeal followed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed. Thereafter, defendant filed a supplemental brief, arguing that appellate counsel rendered ineffective assistance by failing to, among other things, argue that his sentence violated the Eighth Amendment. He requests that we “return this matter back to the sentencing court with instruction to correct the illegal sentence.”
A claim of ineffective assistance of appellate counsel requires a showing of both deficient performance and prejudice. (In re Reno (2012) 55 Cal.4th 428, 488.) Such a claim may be raised by an indigent defendant represented by appointed counsel, and if the appellate court agrees that the appellate attorney failed to raise significant meritorious issues, the defendant may be entitled to appointment of new counsel on appeal. (People v. Lang (1974) 11 Cal.3d 134, 139, 142; People v. Rhoden (1972) 6 Cal.3d 519, 529.)
Having reviewed the record, we find no basis for a claim of ineffective assistance of appellate counsel. No deficient performance appears on the face of the record. To the contrary, the record reflects that a Wende brief was appropriately filed. Accordingly, because we find no arguable error that would result in a disposition more favorable to defendant, we affirm. (Wende, supra, 25 Cal.3d at p. 443.)
DISPOSITION
The trial court’s order denying defendant’s motion to modify his sentence is affirmed.



RAYE , P. J.



We concur:



ROBIE , J.



HOCH , J.