Opinion
D072487
11-07-2017
THE PEOPLE, Plaintiff and Respondent, v. PEDRO ESPINAL, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR121526) APPEAL from an order of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In 1991, Pedro Espinal pleaded guilty to first degree residential burglary (Pen. Code, §§ 459, 460). He was granted probation subject to various conditions.
All further statutory references are to the Penal Code unless otherwise specified.
In June 2017, Espinal filed a petition for dismissal of the burglary conviction pursuant to section 1203.41. Although his petition was submitted from the San Quentin State Prison where Espinal was incarcerated, he indicated in his petition that he was "not serving a sentence for, or on probation for, or charged with any offense." Espinal attached several "laudatory chronos" prepared by prison staff members to note his accomplishments while in prison.
The trial court held a hearing on the petition and discovered Espinal was serving a 38-year-to-life sentence for a 1998 conviction. The court denied the petition for dismissal of the burglary charge because Espinal was not eligible for relief under section 1203.41 since he was then serving a prison sentence.
Espinal filed a notice of appeal from the denial of his petition for dismissal. He filed a separate appeal from an order denying his petition for resentencing of his first degree burglary conviction under Proposition 47 (§ 1170.18).
The record does not contain a petition under section 1170.18, nor does it reflect any action by the superior court on a petition under that section. --------
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating she has not identified any arguable issues for reversal on appeal. Counsel asks this court to review the record as mandated by Wende. Espinal has filed a supplemental brief which essentially repeats his trial court material. We will discuss the supplemental brief in the discussion section below.
DISCUSSION
Although appellate counsel has indicated she has not been able to identify any arguable issues for reversal on appeal, counsel has complied with Anders v. California (1967) 386 U.S. 738 (Anders) and has identified the following possible, but arguable issue for our consideration in reviewing the record:
Whether Espinal was eligible for relief under section 1203.41, subdivision (a)(3) which limits relief to persons who are "not serving a sentence for, on probation for, or charged with the commission of any offense."
In his supplemental brief Espinal contends his 1991 conviction for first degree burglary was sentenced as a misdemeanor. Although his petition in the trial court sought reduction of the felony offense under section 1203.41, he now argues the sentence was to county jail and thus a misdemeanor. Espinal's argument is not supported by the record.
In 1991, Espinal was granted five years formal probation and sentenced to county jail as a condition of felony probation. He was given a felony sentence and there is no record it was ever reduced to a misdemeanor, nor is there any basis in this record for such reduction. As we have noted, Espinal's petition for reduction of his first degree burglary conviction was under section 1203.41. Under that section, he was not eligible for relief because he was serving an indeterminate term in San Quentin State Prison. Espinal's supplemental material does not create an arguable issue for reversal on appeal.
We have reviewed the entire record as required by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not identified any arguable issues for reversal on appeal. Competent counsel has represented Espinal on this appeal.
DISPOSITION
The order denying the motion to dismiss the 1991 burglary conviction under section 1203.41 is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. BENKE, J.