Opinion
D069586
03-30-2017
THE PEOPLE, Plaintiff and Respondent, v. ISRAEL SOTO, Defendant and Appellant.
Denise M. Rudasill, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS207759) APPEAL from an order of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Israel Soto appeals from an order denying his petition under Penal Code section 1170.18 (Proposition 47) to have his 2007 possession of marijuana for sale conviction designated a misdemeanor. Appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues on appeal and requesting we independently review the record to determine if the trial court committed any error. Soto filed a supplemental brief, arguing the trial court violated his federal constitutional rights to equal protection and due process when it denied his petition.
We have independently reviewed the record on appeal and considered the briefs filed by Soto and his appointed appellate counsel. We conclude the appeal raises no reasonably arguable issues and affirm the trial court's order.
BACKGROUND
In January 2007, United States customs agents stopped Soto as he drove a vehicle into the United States from Mexico at the San Ysidro port of entry. During a search of Soto's vehicle, agents found 103.7 pounds of marijuana hidden in the dashboard and front bumper of the car. Soto admitted to agents he knew there was marijuana in the car and his friend had promised to pay him $1,000 to drive the marijuana across the border.
In 2007, Soto pled guilty to possession of marijuana for sale in violation of Health and Safety Code section 11359, a felony. The trial court placed Soto on formal probation for three years.
In October 2015, Soto filed a petition with the trial court to have his possession of marijuana for sale conviction designated a misdemeanor under Penal Code section 1170.18. The trial court denied the petition, finding Soto's offense was not eligible for reclassification under Penal Code section 1170.18.
DISCUSSION
Proposition 47, codified in Penal Code section 1170.18, reduced the penalties for a number of offenses. "[A] defendant sentenced or placed on probation prior to Proposition 47's effective date can have his or her sentence for an enumerated felony reduced to a misdemeanor." (People v. Shabazz (2015) 237 Cal.App.4th 303, 310.) Possession of marijuana for sale in violation of Health and Safety Code section 11359 is not an enumerated offense qualifying for relief under Penal Code section 1170.18. (See Pen. Code, § 1170.18, subds. (a), (b), & (f).)
We appointed counsel to represent Soto. Counsel filed a brief pursuant to Wende, supra, 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, summarizing the proceedings below and indicating she was unable to find any reasonably arguable issues for reversal or modification of the order Soto challenges in this appeal. Soto's counsel has identified the following issue that "might arguably support the appeal" (Anders, supra, at p. 744): whether the trial court erred in finding Soto's conviction for possession of marijuana for sale ineligible for misdemeanor reduction under Penal Code section 1170.18.
Appellate counsel sent a copy of the appellate record and a copy of the opening brief to Soto and notified him he could submit a supplemental brief. Soto filed a supplemental brief in which he asserts the trial court violated his federal constitutional rights to equal protection and due process when it denied his petition for reclassification of his crime to a misdemeanor. Although he contends the trial court violated his constitutional rights, Soto does not elaborate on the alleged constitutional violations. Soto does not argue the state adopted a classification that affects two or more similarly situated groups in an unequal manner or explain how the proceedings were fundamentally unfair. (See Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [discussing equal protection]; Salas v. Cortez (1979) 24 Cal.3d 22, 27 ["The touchstone of due process is fundamental fairness."].) Instead, Soto focuses on the evidence supporting his conviction, arguing his conviction for possession of marijuana for sale should be reduced to a misdemeanor because he possessed the marijuana for personal use only. Soto's "guilty plea constitutes an admission of every element of the offense charged and constitutes a conclusive admission of guilt." (People v. Turner (1985) 171 Cal.App.3d 116, 125.) He "waive[d] any right to raise questions regarding the evidence, including its sufficiency or admissibility, and this is true whether or not the subsequent claim of evidentiary error is founded on constitutional violations." (Ibid.)
Our review of the entire record pursuant to Wende, supra, 25 Cal.3d 436, including the possible issue listed by counsel pursuant to Anders, supra, 386 U.S. 738, and the issues identified by Soto in his supplemental brief, has disclosed no reasonably arguable appellate issues. Accordingly, we affirm the order. Soto's appellate counsel has competently represented him in this appeal.
DISPOSITION
The order is affirmed.
MCCONNELL, P. J. WE CONCUR: NARES, J. O'ROURKE, J.