Opinion
B299400
06-04-2020
THE PEOPLE, Plaintiff and Respondent, v. NORMAN BLANCO, Defendant and Appellant.
Lori E. Kantor, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA067528) APPEAL from an order of the Superior Court of Los Angeles County, Frank M. Tavelman, Judge. Affirmed. Lori E. Kantor, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
____________________
The jury found defendant and appellant Norman Blanco guilty of possession of contraband in prison. (Pen. Code, § 4573.6, subd. (a).) In a bifurcated bench trial, the trial court found true the allegation that Blanco had suffered a prior serious or violent felony conviction within the meaning of the three strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court denied Blanco's motion to strike his prior strike conviction under Romero, and sentenced him to six years in state prison. The court ordered the six-year sentence to run consecutive to the term of imprisonment Blanco was serving at the time of the offense.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, this court remanded the cause for the limited purpose of allowing the trial court to clarify whether it understood its discretion to impose a concurrent, rather than consecutive, sentence. We affirmed the judgment in all other respects. At the resentencing hearing and in its June 12, 2019 minute order, the trial court stated that it was aware of its discretion at the original sentencing hearing, and reinstated the prior sentence. Blanco appealed.
We appointed counsel. After reviewing the record, counsel filed an opening brief asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende). On January 28, 2020, we advised Blanco that he had 30 days to submit any contentions or issues he wished us to consider.
On February 10, 2020, Blanco filed a supplemental brief. Blanco contends that (1) the trial court violated his right to due process when it relied on a probation report that he was not given an opportunity to rebut, (2) the trial court abused its discretion by not considering mitigating factors and declining to impose the lower term of two years for possession of contraband in prison, and (3) Blanco is entitled to mental health diversion under section 1001.36 because his appeal is still pending.
Blanco's appeal follows our limited remand, therefore "the scope of the issues before the court is determined by the remand order." (People v. Murphy (2001) 88 Cal.App.4th 392, 396-397, citing People v. Deere (1991) 53 Cal.3d 705, 713.) Here, we remanded solely for the trial court to clarify whether it understood its discretion to sentence Blanco concurrently with his prior prison term. None of Blanco's arguments concern this issue and therefore fall outside the scope of our remand. Blanco also forfeited his claims by failing to raise them below. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 [failure to timely raise a sentencing issue in the trial court forfeits the issue for appellate review].)
With respect to Blanco's argument that he should be considered for pretrial mental health diversion under section 1001.36, the statute became effective on June 27, 2018 (See Stats. 2018, ch. 34, § 24), before the June 19, 2019 resentencing hearing, and prior to our prior opinion in People v. Blanco (Feb. 19, 2019, B286116) [nonpub. opn.]. Blanco could have raised the issue on appeal or at the resentencing hearing, but did not. --------
Regardless, Blanco's arguments lack merit. The record demonstrates that Blanco was given ample opportunity to present evidence in his favor at the resentencing hearing, and that the trial court properly considered mitigating factors in sentencing. Blanco did not present any evidence indicating potential eligibility for mental health diversion pursuant to section 1001.36, and does not argue that he meets any of the statute's requirements in his supplemental brief.
We have examined the entire record. We are satisfied no arguable issues exist and that Blanco's counsel has fully satisfied his responsibilities under Wende. (Smith v. Robbins (2000) 528 U.S. 259, 279-284; Wende, supra, 25 Cal.3d at p. 441.)
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.