Opinion
E069346
06-13-2018
THE PEOPLE, Plaintiff and Respondent, v. GILBERT OSUNA LUNA, JR., Defendant and Appellant.
Kyle D. Smith, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF052500) OPINION APPEAL from the Superior Court of Riverside County. Charles Everett Stafford, Jr., Judge. Affirmed. Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant Gilbert Osuna Luna, Jr. appeals from the trial court's order denying his petition for modification of sentence and to correct illegal enhancements. The order is affirmed.
FACTS AND PROCEDURE
On July 16, 2008, the People filed a first amended information charging defendant in count 1 with murder (Pen. Code, § 187, subd. (a)); in count 2 with assault with a firearm (§ 245, subd. (a)(2)); in count 3 with discharging a firearm in a grossly negligent manner which could result in injury or death (§ 246.3); and in count 4 with voluntary manslaughter (§ 192, subd. (a)). The People also alleged enhancements that included firearm use and gang participation.
Section references are to the Penal Code except where otherwise indicated. --------
On July 16, 2008, defendant pled guilty to assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)) and voluntary manslaughter. Regarding the manslaughter count, defendant admitted the enhancements for firearm use (§ 12022.5, subd. (a)) and gang participation (§ 186.22, subd. (b)(1)(C).)
The court immediately sentenced defendant according to the plea agreement to 18 years in prison as follows: the low term of three years for voluntary manslaughter, plus 10 years for the gang enhancement, plus the middle term of four years for the firearm enhancement, plus one-third of the three-year middle term (one year) for the assault.
Sometime between July 6 and August 29, 2017, defendant filed with the superior court a document entitled "Petition for Modification of Sentence and to Correct Illegal Enhancement." Defendant argued his 18-year sentence was cruel and unusual punishment in violation of the Eight Amendment and that the two sentencing enhancements violated section 654.
On August 29, 2017, the court denied the petition at an ex parte hearing.
This appeal followed.
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
J. We concur: McKINSTER
J. SLOUGH
J.