Filed 1/4/18 P. v. Meza CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA


THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE RENAN MEZA,

Defendant and Appellant.
D072144


(Super. Ct. No. JCF35047)


ORDER MODIFYING OPINION


NO CHANGE IN JUDGMENT

THE COURT:
It is ordered that the opinion filed herein on December 15, 2017, be modified as follows:
On page 6, in the last sentence—which is also the last paragraph—the name "Metz" is changed to "Meza" so the sentence reads:
Competent counsel has represented Meza on appeal.

There is no change in the judgment.


NARES, Acting P. J.

Copies to: All parties

Filed 12/15/17 P. v. Meza CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE RENAN MEZA,

Defendant and Appellant.
D072144



(Super. Ct. No. JCF35047)

APPEAL from orders of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Jose Renan Meza appeals an order denying his petition for resentencing under Health and Safety Code section 11361.8 (Proposition 64) and the subsequent sentencing order. Meza's appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738, indicating she has not identified any reasonably arguable issue for reversal or modification of the orders. Counsel asks this court to review the record for error as mandated by Wende. We offered Meza the opportunity to file his own brief, but he has not responded. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Arrest, Conviction, Sentencing
In June 2015 police arrested Meza as he entered the United States with 1.41 kilograms of marijuana attached to his thigh. Meza told police he owed money to someone for another load of narcotics he had lost after being arrested, and the debt was going to be settled if he successfully smuggled the marijuana.
The Imperial County District Attorney filed a one-count felony complaint against Meza, alleging he sold or transported marijuana in violation of section 11360, subdivision (a). Subsequently, Meza pleaded no contest to the charged offense, and in exchange, on August 14, 2015, the court sentenced Meza to a two-year split sentence, with one year at Turning Point Ministries (Turning Point) and one year under mandatory community supervision. If Meza failed to complete the entire one year at Turning Point, then he was to receive no credit for any time spent in that program and the sentencing would revert back to two years in county prison with no credits for the time spent at Turning Point.
Just four days later, on August 18, 2015, Meza left Turning Point without permission. The court issued a bench warrant for his arrest.
About 18 months later, in February 2017, police arrested Meza and the court revoked probation.
B. Proposition 64 Motion
In March 2017 Meza filed a petition for resentencing under section 11361.8, the statutory enactment of Proposition 64. Meza asserted that under the new law his sentence should be reduced to a misdemeanor. The People filed opposition, asserting that although the offense was a wobbler, even under the new marijuana sentencing law in section 11360, subdivision (a)(3)(D), Meza was still subject to felony sentencing because he transported more than 28.5 grams of marijuana. The People asserted Meza "has engaged in [the] same type of conduct in the past (importation of marijuana); he has been convicted of crimes of violence; he had served a prior prison term, and the nature of his convictions are of increased seriousness." Additionally, the People argued, "And at the outset of his mandatory supervision, the defendant absconded for almost 16 months. The defendant imported into California an amount of marijuana that is over 45 times the weight threshold for felony sentencing, said amount does not justify a discretionary reduction under . . . section 11361.8."
The court denied Meza's motion, stating, "[T]he defendant was crossing the border and he had on his body wrapped around him 1.4 kilograms of marijuana . . . . The defendant made admissions that he was smuggling the marijuana to appease or to satisfy a debt that was owed and that it was for importation and sales for another individual." Subsequently, the court sentenced Meza to remain on mandatory supervision, to participate in the GEO Re-Entry Services for counseling, made other related orders, and imposed terms and conditions.
DISCUSSION
On November 8, 2016, California voters approved Proposition 64. Among other things, Proposition 64 reduced the punishment for certain marijuana offenses. Relevant here, under section 11360, subdivision (a)(3)(D), importing over 28.5 grams of marijuana by an adult is a wobbler—it may be punished by imprisonment in a county jail for a period of not more than six months and/or by a fine of not more than $500 dollars, or it may be punished by imprisonment for a period of two, three, or four years. (§11360, subd. (a)(2) & (a)(3)(D).
Proposition 64 also provides for recall of sentence or dismissal in certain cases. It added section 11361.8, which provides in part: "(a) A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense may petition for a recall or dismissal of sentence."
Subdivision (b) of this statute provides, "(b) Upon receiving a petition under subdivision (a), the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety."
Meza's appellate counsel has identified the following issues that might arguably support the appeal: (1) "Did the prosecutor prove by clear and convincing evidence via the police report, which served as the factual basis for the plea, that [Meza] did not satisfy the criteria to qualify for reduction of his sentence for violation of section 11360, subdivision (a)?" (2) "Did the trial court abuse its discretion when it denied [Meza's] request to reduce his offense of possession for sale of 1.14 [sic] kilograms of marijuana . . . to a misdemeanor?"
Our review of the record, including the issues identified by Meza's attorney, has disclosed no reasonably arguable appellate issues. During the plea process, the parties stipulated to the police report supplying the factual basis; that report states Meza possessed 1.41 kilograms of marijuana. Therefore, under section 11360, subdivision (a)(3)(D), the court had broad discretion in deciding whether to reduce Meza's conviction to a misdemeanor. In exercising its discretion, the court was entitled to consider, among other things, "'the nature and circumstances of the offense, [and] the defendant's appreciation of and attitude toward the offense . . . .'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978, superseded by statute on other grounds as indicated in People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) The record shows the court considered appropriate factors in exercising its discretion and, therefore, the court did not abuse its discretion in denying Meza's motion for resentencing under section 11361.8.
Competent counsel has represented Metz on appeal.
DISPOSITION
The orders are affirmed.


NARES, Acting P. J.

WE CONCUR:



IRION, J.



DATO, J.