Opinion
B298937
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. PEDRO ORLANDO GUERRA, Defendant and Appellant.
California Appellate Project, Richard B. Lennon and Ann Krausz, under appointments 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. GA053877) APPEAL from an order of the Superior Court of Los Angeles County, Jared D. Moses, Judge. Affirmed. California Appellate Project, Richard B. Lennon and Ann Krausz, under appointments by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
BACKGROUND AND DISCUSSION
In 2004, defendant, Pedro Orlando Guerra, was convicted by jury of first degree attempted burglary. (Pen. Code, §§ 664, 459.) The jury found true the allegation that a person or persons were present at the dwelling during the commission of the offense. The jury also found true the allegation that appellant had sustained two prior strike convictions pursuant to the Three Strikes Law, and that he had served four prior prison terms pursuant to Penal Code section 667.5, subdivision (b). (Pen. Code, §§ 1170.12, subds. (a)-(d), and 667, subds. (b)-(i).)
On March 4, 2005, the trial court sentenced defendant to 25 years to life plus two five-year enhancements pursuant to Penal Code section 667, subdivision (a)(1).
On July 11, 2006, this court affirmed defendant's conviction. (People v. Guerra (Jul. 11, 2006, B181680) [nonpub. opn.].) The remittitur issued on October 19, 2006.
In 2013, defendant filed a petition to recall his sentence pursuant to Penal Code section 1170.126. On December 19, 2013, the trial court denied the petition. (People v. Guerra (Jun. 4, 2014, B253981) [nonpub. opn.].) This court affirmed the denial of the petition. (Ibid.)
On May 13, 2019, defendant, who was self-represented, filed a Request for Recall and Resentence pursuant to Penal Code section 1170, subdivision (d)(1). The trial court denied defendant's request, finding that defendant was not entitled to resentencing under Penal Code section 1170, subdivision (d)(1), which permits the court, "within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates" to recall a defendant's sentence.
Defendant timely filed a notice of appeal.
We appointed counsel to represent defendant in the instant appeal. Counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436, requesting that we independently review the entire record to determine if there are any arguable issues.
On November 19, 2019, we notified defendant that his appointed counsel had failed to find any arguable issues in the instant appeal and that he had 30 days within which to independently brief any grounds for appeal, contentions, or arguments he wanted us to consider.
On December 18, 2019, defendant filed a supplemental brief, in which he "remind[s] the court that he has submitted the aforementioned request for resentencing under the affirmation that he qualifies for consideration under [Penal Code section] 1170." But defendant does not articulate any argument as to how the trial court erred in denying his petition. Defendant further argues that "[t]he California Department of Corrections and Rehabilitation [(CDCR)] has fundamentally refused to adhere to the wish of the People of the [S]tate of California, when they approved Proposition 57." Proposition 57 added a provision to the California Constitution that significantly expanded parole consideration to all state prisoners convicted of a nonviolent felony offense. (Cal. Const., art. I, § 32, subd. (a)(1).) But the record on appeal does not include any request by defendant for early parole consideration, the denial of such a request by the CDCR, or a challenge to the CDCR's denial. We do not consider matters outside the record on appeal. (People v. Merriam (1967) 66 Cal.2d 390, 396-397, disapproved in part on other grounds in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882.)
We have reviewed the record and are satisfied that defendant's appointed counsel has fully complied with her responsibilities in the instant appeal and no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J. We concur:
BAKER, Acting P. J.
MOOR, J.