Opinion
B263386
11-24-2015
THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO LEYVA, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA419378) THE COURT:
BOREN, P. J., ASHMANN-GERST, J., HOFFSTADT, J.
In this appeal, Guillermo Leyva (Leyva) challenges the order denying his motion for resentencing under Proposition 47. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende) raising no issues for us to consider. On August 20, 2015, we notified Leyva of his counsel's brief and gave him leave to file, within 30 days, a brief or letter setting forth any arguments supporting his appeal. He filed a timely letter on September 4, 2015. Upon review of counsel's Wende brief, Leyva's letter and the record, we conclude that there are no arguable issues, and Leyva is not entitled to appellate relief.
Proposition 47 was effective November 5, 2014, and added Penal Code section 1170.18, subdivision (a). (People v. Hoffman (2015) 2015 Cal.App. LEXIS 991, *4-5.) Section 1170.18, subdivision (a) provides: "A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies 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 before the trial court that entered the judgment of conviction in his or her case 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, 492, or 666 of the Penal Code, as those sections have been amended or added by this act."
All further statutory references are to the Penal Code unless otherwise indicated. --------
When assessing a claim under Proposition 47, a reviewing court must determine whether the defendant was convicted of a felony offense that qualifies for misdemeanor sentencing. Here, Leyva was convicted of sale or transportation of a controlled substance under Health and Safety Code section 11352, subdivision (a). Because that statute was not amended by Proposition 47, Leyva is not eligible for recall of sentence and resentencing.
In his letter brief, Leyva argues that his conviction violated due process. This argument is not relevant to the propriety of the challenged order. Consequently, we decline to delve into any due process issues.
We are satisfied that Leyva's counsel complied with her responsibilities. We conclude that Leyva has received adequate and effective appellate review of the judgments entered against him by virtue of counsel's compliance with the Wende procedure, and our review of the record. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.