Opinion
A157831
11-15-2019
THE PEOPLE, Plaintiff and Respondent, v. LUIS RAMON GUERRERO-LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR4841431)
In December 2009, defendant Luis Ramon Guerrero-Lopez pleaded guilty to one count of attempted murder (Pen. Code, §§ 187, 664 ) with a related gang enhancement (§ 186.22, subd. (b)(1)), one count of assault with a firearm (§ 245, subd. (a)(2)) with a related gang enhancement (§ 186.22, subd. (b)(1)), and an on-bail sentencing enhancement (§ 12022.1) He was sentenced to state prison for an aggregate term of 23 years, which included a consecutive term of one year (one-third the middle term) for the assault with a firearm conviction.
All further unspecified statutory references are to the Penal Code.
In April 2019, defendant filed a petition requesting resentencing for his felony conviction for assault with a firearm under section 1170.18, which was enacted as part of Proposition 47 in 2014. Section 1170.18 provides, in pertinent part: "(a) A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony . . . who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence . . . to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act. [¶] (b) Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code . . . ." Following the denial of his resentencing petition, defendant filed a timely notice of appeal (§ 1237, subd. (b); see also Teal v. Superior Court (2014) 60 Cal.4th 595, 596), [denial of prisoner's claim of eligibility for resentencing under the Three Strikes Reform Act was appealable]), and, the trial court granted his request for a certificate of probable cause.
Appellate counsel has filed a brief raising no issues and asks us to independently review the record under People v. Wende (1979) 25 Cal.3d 436. As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note defendant has been informed of his right to file a supplemental brief and he has not filed such a brief.
We initially note the trial court denied the resentencing request on the ground that section 1170.18 did not apply to felony offenses classified as serious offenses under section 1192.7. However, the court incorrectly applied the eligibility requirement for resentencing under section 1170.126 for persons serving indeterminate life sentences, rather than the eligibility requirement for section 1170.18. Nevertheless, its ruling was correct because, as a matter of law, defendant's conviction for assault with a firearm was not a covered offense for which he was entitled to relief under section 1170.18. The court's ruling of ineligibility " ' "will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." ' " (People v. Zapien (1993) 4 Cal.4th 929, 976.)
Additionally, we have considered the issues mentioned by defendant in his certificate of probable cause. Defendant first contends he is entitled to resentencing because assault with a firearm is a wobbler offense that should be reduced from a felony to a misdemeanor. This argument fails as section 1170.18 only allows resentencing for convictions of "certain drug-related and theft-related offenses that previously were felonies or 'wobblers' . . . . (§ 1170.18, added by Prop. 47, § 14, approved by the voters at the Gen. Elec. (Nov. 4, 2014).)" (People v. Valencia (2017) 3 Cal.5th 347, 351.)
We also see no arguable ground for relief based on defendant's contention that the denial of his resentencing petition violates his constitutional due process rights. In support of his argument, he posits the following quote, "[i]f a term of imprisonment can be shortened or modified by rights conveyed under state law, those rights cannot be denied without due process," citing to O'Bar v. Pinion (4th Cir. 1991) 953 F.2d 74, 83. However, having been sentenced to a valid state prison term for his conviction for assault with a firearm, defendant has no "constitutional or inherent right . . . to be . . . released [from prison] before the expiration" of his sentence. (Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 7 (Greenholtz).) Section 1170.18 "authorize[s] only a limited adjustment to an otherwise final sentence and [is] not a plenary resentencing proceeding." (Dillon v. United States (2010) 560 U.S. 817, 826.) Instead, the statute represents an act of lenity that the electorate determined was appropriate for persons convicted of certain drug-related and theft-related offenses. (See People v. Jefferson (2016) 1 Cal.App.5th 235, 241 [defendant has no constitutional right to resentencing under Proposition 47]; see also People v. Acosta (2015) 242 Cal.App.4th 521, 527-528 [court rejects challenge to Proposition 47 on constitutional equal protection grounds as "the electorate could rationally extend misdemeanor punishment to some nonviolent offenses but not to others, as a means of testing whether Proposition 47 has a positive or negative impact on the criminal justice system"].) Thus, the denial of defendant's resentencing petition does not constitute a violation of his substantive due process rights to be free of arbitrary state action. (Greenholtz, supra, at p. 7.) Nor does the record reflect a violation of defendant's procedural due process rights as it is evident that he is not entitled to section 1170.18 relief because assault with a firearm is not a covered offense under the act.
In sum, our independent review of the record discloses no arguable issues that warrant further briefing by appellate counsel. Accordingly, the order denying defendant's petition for resentencing of his felony conviction for assault with a firearm under section 1170.18 is affirmed.
DISPOSITION
The order denying defendant's petition for resentencing of his felony conviction for assault with a firearm under Penal Code section 1170.18 is affirmed.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Goode, J.
Retired Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------