Opinion
F075586
04-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS GALLARDO, Defendant and Appellant.
Lindsay Sweet, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CR-05790C)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. (Retired Judge of the Merced Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Meehan, J. and Ellison, J.†
-ooOoo-
Appointed counsel for defendant Jose Luis Gallardo asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. On review, we find no arguable issues on appeal.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On October 20, 2015, defendant went to the house he and his codefendants were using to grow marijuana. He was armed and intended to meet potential buyers of 10 pounds there. A shoot-out ensued during which defendant and a codefendant were shot and injured, and a potential buyer was shot and killed.
On October 6, 2016, defendant pled no contest to possession of marijuana for sale (Health & Saf. Code, § 11359) and admitted personally using a firearm (Pen. Code, § 12022.5, subd. (a)). The remaining charges were dismissed by motion of the prosecutor. The plea agreement provided for a sentencing lid of 12 years with an opportunity to argue for a lesser sentence. A sentencing hearing was set for December 15, 2016.
All statutory references are to the Penal Code unless otherwise noted. --------
On December 6, 2016, the prosecution requested that the trial court reject the plea agreement (§ 1192.5) on the ground of a change in law regarding possession of marijuana for sale following the passage of Proposition 64. On December 14, 2016, defendant opposed the motion. On December 15, 2016, the court rejected the plea agreement, concluding that Harris v. Superior Court (2016) 1 Cal.5th 984, relied on by defendant, did not apply in this case because sentencing had not yet occurred.
On February 2, 2017, the prosecution filed an amended information substituting conspiracy to possess marijuana for sale (§ 182, subd. (a)(1)) for possession of marijuana for sale (Health & Saf. Code, § 11359). The information included the other counts and enhancement previously charged and dismissed.
On February 9, 2017, defendant pled no contest to assault with a firearm (§ 245, subd. (a)(2)) and admitted personally using a firearm (§ 12022.5, subd. (a)). The remaining charges were dismissed by motion of the prosecutor. The plea agreement provided for a sentencing lid of 12 years with an opportunity to argue for a lesser sentence.
On April 24, 2017, the trial court sentenced defendant to 12 years in prison: two years on the assault count and 10 years on the firearm use enhancement. The court granted custody credits and imposed various fines and fees.
On May 3, 2017, defendant filed a notice of appeal. The trial court granted defendant's request for a certificate of probable cause.
Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.