Opinion
C085236
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. DI BIN LI, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F02972)
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
By a felony complaint deemed an information, defendant and several codefendants were charged with violating Health and Safety Code former section 11359 and section 11366.5, subdivision (a) (count 1, possessing marijuana for purposes of sale; count 2, making a space available for unlawfully manufacturing, storing, and distributing a controlled substance).
Pursuant to a plea agreement, the complaint was amended and defendant pleaded no contest on November 18, 2015, to one count of violating Penal Code section 32 (accessory after the fact to a felony conspiracy) on April 30, 2014, in Sacramento County, as a reasonably related offense to count 1. The trial court suspended imposition of sentence and placed defendant on formal probation for five years, including 179 days in county jail with five days' credit for time served. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a matching suspended probation revocation restitution fine (§ 1202.44), a $40 court security assessment (§ 1465.8, subd. (a)(1)), a $30 conviction assessment (Gov. Code, § 70373), and a 20 percent surcharge on base fines as a criminal impact fee (§ 1465.7).
Undesignated statutory references are to the Penal Code. --------
There is no probation report in the record. According to the People's representation, the police report in the case showed that marijuana was being cultivated for purposes of sale at four residences in Folsom. Defendant was seen accessing two of those residences on multiple occasions and transporting materials to them from hydroponic stores. The owner of one of the residences said it was rented to defendant. Plants seized from the residences yielded approximately 93 pounds of marijuana.
On March 8, 2017, defendant filed a motion to dismiss pursuant to Proposition 64 (Adult Use of Marijuana Act, as approved by voters, Gen. Elec. (Nov. 8, 2016)), which amended Health and Safety Code section 11359 to make it a misdemeanor and added Health and Safety Code section 11361.8, authorizing defendants serving sentences to bring motions to dismiss or to seek resentencing if the offense was no longer a felony under Health and Safety Code sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, or 11362.4. (Health & Saf. Code, § 11361.8, subd. (a).) After hearing the motion, the trial court issued a written decision denying it on the grounds that only offenses specifically listed in Health and Safety Code section 11361.8 were eligible for dismissal or resentencing under Proposition 64, and defendant was convicted of being an accessory after the fact (§ 32), which was not listed as an eligible offense.
Defendant filed timely appeal from the order denying his motion to dismiss.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Hoch, J.