Opinion
C086773
10-29-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BARAJAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11F08010)
Appointed counsel for defendant Michael Barajas 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.) After reviewing the entire record, we have found no arguable error that would result in a disposition more favorable to defendant. We therefore affirm.
I. BACKGROUND
In May 2015, defendant pleaded no contest to second degree robbery (Pen. Code, § 211) and admitted using a firearm during the commission of a felony (Pen.Code, § 12022.53, subd. (b)). The trial court sentenced defendant to an aggregate term of 12 years in state prison, two years for the robbery conviction and 10 years for the firearm enhancement.
On January 29, 2018, following the recent amendments to Penal Code section 12022.53, defendant filed a postjudgment motion to strike the firearm use enhancement. The trial court denied defendant's motion, finding the court lacked the jurisdiction to resentence defendant because the judgment in this matter was final in 2015.
The proper procedure would have been to seek habeas corpus relief in the trial court by filing a petition for writ of habeas corpus. (People v. Harris (2018) 22 Cal.App.5th 657, 662.) --------
Defendant appeals from that order.
II. 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. (People v. 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. More than 30 days have elapsed, and defendant has not filed a supplemental brief.
Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
MURRAY, J.