Filed 12/11/19 P. v. Magallanes CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSUE AGUSTIN MAGALLANES,

Defendant and Appellant.

D076034

(Super. Ct. No. INF1200051)

APPEAL from a judgment of the Superior Court of Riverside County, Jeffrey Prevost, Judge. Affirmed.

Josue Agustin Magallanes, in pro. per.; and Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury convicted Josue Agustin Magallanes and a co-defendant of first degree murder (Pen. Code, § 187, subd. (a); count 1) and street terrorism (§ 186.22, subd. (a); count 6). The jury also found Magallanes personally discharged a firearm causing death (§ 12022.53, subds. (d) and (e)(1)). Magallanes was originally sentenced to 25 years to life for murder; 25 years to life for the firearm enhancement; and two years for the street gang offense.

Magallanes appealed and in 2018 this court issued its opinion. We conditionally reversed the convictions and sentence and remanded the case to the trial court with directions. We said: “. . . . If the defendants are found unfit for juvenile court treatment, their convictions will be reinstated consistent with this opinion. . . . We accept the People’s concessions as to count 6, Magallanes’s custody credits, and to deleting references to sentencing provisions under the Three Strikes law. We hold the trial court cannot lawfully impose the 10-year gang enhancement on either defendant, but in accordance with section 186.22, subdivision (b)(5), defendants are subject to a 15-year minimum eligible parole date. We hold both Arcos and Magallanes are entitled on resentencing to make a record of information relevant to their eventual youth offender parole hearing under [People v.] Franklin [(2016)] 63 Cal.4th 261, and the court pursuant to section 12022.53, subdivision (h) shall exercise its discretion as to both defendants under section 1385 to strike or again impose one or more of their firearm enhancements on count 1. The judgments are otherwise affirmed.” (People v. Magallanes (Mar. 27, 2018, D072864) [nonpub. opn.].)

On remand, the juvenile court found that Magallanes and the co-defendant were not suitable for treatment as juveniles. They were returned to the adult court for sentencing.

At the sentencing hearing, the court heard the defense motion to strike or modify the firearm enhancement. Exercising its discretion, the court declined to strike or modify the punishment for the use of the firearm.

Magallanes was sentenced to a combined term of 50 years to life. Sentence on count 6 was stayed under section 654.

Magallanes filed a timely notice of appeal.

Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating he has not been able to identify any arguable issues for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Magallanes the opportunity to file his own brief on appeal. He has responded with a supplemental brief. We will address the supplemental brief later in this opinion.

STATEMENT OF FACTS

The facts of the underlying offenses are set forth in our unpublished opinion People v. Magallanes, supra, D072864. We will not repeat them here.

DISCUSSION

As we have noted, appellate counsel has filed a Wende brief. Counsel asks this court to review the record for error. To assist this court in its review of the record and as required by Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified two possible issues he considered in evaluating the potential merits of this appeal:

1. Did the court err in denying appellant’s motion to strike the firearm discharge enhancement and/or stay imposition of sentencing thereon; and

2. Does appellant’s indeterminate life sentence constitute cruel and unusual punishment?

In his supplemental brief, Magallanes repeats some of trial counsel’s arguments to the court at the resentencing hearing. Because he was 17 at the time of the offenses, Magallanes states the court erred in declining to strike or stay the punishment for the firearm enhancement. As a result, he states his sentence amounts to cruel and unusual punishment.

We have reviewed the entire record. We have not identified any arguable issue for reversal on appeal. Competent counsel has represented Magallanes on this appeal.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

AARON, J.