Filed 11/19/18 P. v. Blanco CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Appellant,
v.
IVAN BLANCO,
Defendant and Appellant.
|
F077062
(Super. Ct. No. VCF288608)
OPINION |
THE COURT*
APPEAL from an order of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired judge of the Tulare County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Gregory L. Cannon, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appointed counsel for defendant Ivan Blanco asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded, raising the issue of sentencing error. Our review of the entire record reveals no arguable issues on appeal. Accordingly, we affirm.
BACKGROUND
We provide the following brief description of the history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Approximately in August 2013, the victim came home from work and observed that the door to his house was open. When he entered, he saw defendant going through his belongings. The victim told defendant to leave and said he did not want any problems.
The victim did not see defendant again until September 7, 2013. That night, defendant was standing outside a residence with some other people. When the victim rode by on a bicycle, defendant shouted, “ ‘Here comes that son of a bitch!’ ” Defendant ran after the victim and fired several shots at him, striking him three times. Officers found eight .45-caliber shell casings around the victim’s bicycle. The victim survived.
On September 26, 2014, defendant pled no contest to attempted murder (Pen. Code, §§ 187, subd. (a), 664)[1] and admitted using a firearm in the commission of the offense (§ 12022.53, subd. (b)), in exchange for 15 years in state prison.
On October 31, 2014, the trial court sentenced defendant to five years in prison, plus the 10-year firearm enhancement, for a total of 15 years, as agreed.
On January 22, 2018, defendant filed a motion with the trial court to strike the firearm enhancement pursuant to Senate Bill No. 620.
On January 24, 2018, the trial court denied the motion.
On February 23, 2018, defendant filed a notice of appeal.
DISCUSSION
When defendant was originally sentenced on October 31, 2014, the trial court lacked discretion to strike the firearm enhancement imposed pursuant to section 12022.53, subdivision (b); imposition of the enhancement was mandatory. (Former § 12022.53, subd. (h); see, e.g., People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363, citing former § 12022.53, subd. (h).) Senate Bill No. 620, however, changed that when it became effective January 1, 2018. Section 12022.53, subdivision (h) now provides that “[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.”
The amendment to section 12022.53 applies retroactively to cases that were not final when the amendment became operative. (See People v. Woods (2018) 19 Cal.App.5th 1080.) Under In re Estrada (1965) 63 Cal.2d 740, we presume that, absent contrary evidence, an amendment reducing punishment for a crime applies retroactively to all nonfinal judgments. (Id. at p. 745; People v. Brown (2012) 54 Cal.4th 314, 323; People v. Vieira (2005) 35 Cal.4th 264, 305-306 [judgment is not final for purposes of retroactivity analysis until time for petitioning United States Supreme Court has expired].) The Estrada rule has been applied to penalty enhancements, as well as to amendments giving the court discretion to impose a lesser penalty. (People v. Nasalga (1996) 12 Cal.4th 784, 792; People v. Francis (1969) 71 Cal.2d 66, 75-76.)
In this case, defendant’s judgment had already become final well before January 1, 2018. Defendant was sentenced on October 31, 2014. His time to appeal expired 60 days later and his judgment became final. (Cal. Rules of Court, rule 8.308(a).) Senate Bill No. 620 became effective on January 1, 2018. Thus, the amendment to section 12022.53 does not apply to defendant and the trial court correctly denied defendant’s motion.[2]
We have undertaken an examination of the entire record regarding the restitution order, and we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.
DISPOSTION
The order denying the motion is affirmed.
