Opinion
D071747
11-28-2017
THE PEOPLE, Plaintiff and Respondent, v. DESMOND PAYTON, Defendant and Appellant.
Athena Shudde, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR135453) APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Appellant's counsel has filed a brief under the procedures set forth in People v. Wende (1979) 25 Cal.3d 436, 441-443 (Wende) and Anders v. California (1967) 386 U.S. 738, 744 (Anders). We have given appellant, Desmond Payton, the opportunity to file a brief on his own behalf and he has declined to do so. We affirm the trial court's judgment sentencing Payton to three consecutive terms of 25 years to life and three consecutive five-year enhancements.
FACTUAL AND PROCEDURAL BACKGROUND
In 1993, a jury convicted Payton of three counts of first degree murder and made true findings on use of a firearm and special circumstances of multiple murder and lying in wait. At the time of the murders Payton was 16 years old, and at the time of his initial sentencing he was 18 years old. At his 1993 sentencing, the trial court imposed three consecutive terms of life without the possibility of parole and a consecutive five-year firearm enhancement with respect to one of the murder counts.
In March 2013, after serving 15 years of his initial sentence, Payton filed a petition under Penal Code section 1170, subdivision (d)(2)(A)(i) to recall his initial sentence and for resentencing. The trial court granted Payton's petition, recalled his sentence, and following a hearing, sentenced appellant to 15 years in prison consecutive to three terms of 25 years to life.
DISCUSSION
Counsel raises as a potential issue the constitutional requirement that a youthful offender be given a realistic opportunity to obtain parole, notwithstanding his or her commission of a grave offense as a juvenile. (See People v. Franklin (2016) 63 Cal.4th 261, 268.) However, as the record here indicates, under Penal Code sections 3051 and 4801, Payton has such a parole opportunity, and that opportunity satisfies the requirements of the Constitution. (People v. Franklin, at p. 268.)
We have examined the record and find no other potential issues on appeal. Payton has received adequate representation on appeal.
DISPOSITON
The judgment imposing a new sentence is affirmed.
BENKE, Acting P. J. WE CONCUR: NARES, J. O'ROURKE, J.