Filed 1/10/20 P. v. Moreno CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ISAAC PUGAL MORENO,

Defendant and Appellant.

E073315

(Super.Ct.No. INF1400595)

OPINION

APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge. Affirmed.

Jason Szydlik, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant, Isaac Pugal Moreno, filed a motion in the superior court requesting the court initiate Penal Code section 1170, subdivision (d), proceedings. The court denied the petition. After defendant filed a notice of appeal, 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 and identifying three potentially arguable issues: (1) whether defendant knowingly and intelligently waived his right to appeal; (2) whether the court erred in denying defendant’s motion; and (3) whether the court erred in imposing sentence on both the gang and firearm enhancements. We offered defendant an opportunity to file a personal supplemental brief; he has not done so. We affirm.

FACTUAL AND PROCEDURAL HISTORY

The People charged defendant by felony complaint with premeditated murder. (§ 187, subd. (a), count 1.) The People further alleged that defendant personally discharged a firearm in the commission of the murder (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)), committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), intentionally killed the victim while an active participant of a criminal street gang (§ 190.2, subd. (a)(22)), and alleged the murder qualified as an unspecified special murder circumstance (§ 190.2, subd. (a)).

On November 18, 2016, defendant pled guilty to an amended count 2 offense of voluntary manslaughter (§ 192, subd. (a)), a lesser included offense of the charged crime of murder. Defendant also admitted that while he committed the offense, he personally used a firearm (§ 12022.5, subd. (a)) and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Defendant waived any rights he might have had to be transferred to the juvenile court pursuant to Proposition 57 and any right to appeal that waiver. As part of his plea, defendant waived any right to appeal. The parties stipulated there was a factual basis for the plea. Defendant contemporaneously pled guilty in two other cases to charges of assault by means of force likely to cause great bodily injury. (§ 245, subd. (a)(4).)

On the same day as defendant’s plea, pursuant to the plea agreement, the court sentenced defendant to an aggregate term of imprisonment of 31 years consisting of the following: the upper term of 11 years on the manslaughter offense, a consecutive 10 years on the personal use of a firearm enhancement, and a consecutive 10 years on the gang enhancement. On the People’s motion, the court dismissed count 1. The court imposed one-third the midterm of three years (one year) on both of the assault cases, to run consecutive to the sentence imposed in the instant case, for a total of 33 years of incarceration.

On June 4, 2019, defendant filed a motion requesting that the court initiate section 1170, subdivision (d), proceedings. Defendant contended he assumed the court would stay the gang or firearm enhancement. The court denied the motion, noting that it was without jurisdiction to grant it.

DISCUSSION

Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues. (§ 1170, subdivision (d)(1) [Any recall and resentencing under this subdivision must be made within 120 days of sentencing.]; People v. Pritchett (1993) 20 Cal.App.4th 190, 193 [“Section 1170 subdivision (d) does not confer standing on a defendant to initiate a motion to recall a sentence.”].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.