Opinion
F076109
06-19-2018
THE PEOPLE, Plaintiff and Respondent, v. EDGARDO ALONSO, Defendant and Appellant.
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF195586)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. Gary L. Paden, Judge. Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and Ellison, J.†
-ooOoo-
Appellant Edgardo Alonso appeals from the trial court's denial of his petition, pursuant to Health and Safety Code section 11361.8, to reduce his 2009 possession for sale of marijuana conviction (§ 11359) from a felony to a misdemeanor. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
Unless otherwise indicated, all statutory references are to the Health and Safety Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
On December 13, 2007, Alonso, who was then 17 years old, drove up to J.R. at a residence in Earlimart. After stating that he thought J.R. was "not banging anymore," Alonso brandished a handgun and fired several shots at J.R. before driving off. J.R. sustained gunshot wounds to his left hand and upper right forearm.
During a search of Alonso's house after the shooting, officers found 37.6 grams of marijuana, 0.08 grams of cocaine, 0.21 grams of rock cocaine, and an Uzi machine gun. Alonso admitted that he had been selling drugs for a year.
On March 27, 2009, a jury convicted Alonso of attempted murder (Pen. Code, §§ 664 & 187/count 1), shooting from a motor vehicle (Pen. Code, § 12034, subd. (c)/count 2), possession of an assault weapon (Pen. Code, § 12280, subd. (b)/count 3), possession for sale of controlled substance (§ 11351)/count 4), possession for sale of marijuana (count 5), and cultivation of marijuana (§ 11358/count 6). Additionally, a gang enhancement was found true in count 1 (Pen. Code, § 186.22, subd. (b)(1)(c)) and count 3 (Pen. Code, § 186.22, subd. (b)(1)(A)), and a firearm enhancement was found true in count 1 (Pen. Code, § 12022.53, subd. (d)), count 2 (Pen. Code, § 12022.53, subd. (d)), count 4 (Pen. Code, § 12022, subd. (c)) and count 5 (Pen. Code, § 12022, subd. (a)(1)).
On June 9, 2009, the court sentenced Alonso to an aggregate, determinate prison term of 22 years and an indeterminate term of 25 years to life.
On November 6, 2016, the voters passed Proposition 64, which added section 11361.8. (Prop. 64, § 8.7, eff. Nov. 9, 2016.) Subdivision (a) of this section provides:
"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 before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by this Act." (§ 11361.8, subd. (a).)
On March 23, 2017, Alonso filed a petition to have his convictions for possession for sale of marijuana and cultivation of marijuana reduced to misdemeanors and for resentencing on those offenses.
On August 7, 2017, the court granted the petition with respect to Alonso's cultivation of marijuana conviction and reduced that conviction to a misdemeanor. However, it found that Alonso posed a significant risk to public safety and denied his petition with respect to his possession for sale of marijuana conviction. (§ 11361.8, subd. (b) ["the court shall grant the petition ... unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety"].) Alonso filed a timely appeal on that date.
Alonso's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Alonso has not responded to this court's invitation to submit additional briefing.
Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The order is affirmed.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.