People v. Barahona CA4/1 ( 2023 )


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  • Filed 3/6/23 P. v. Barahona 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    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          D080864
    Plaintiff and Respondent,
    v.                                                         (Super. Ct. No. JCF34985)
    HERBERT BARAHONA,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Imperial County,
    L. Brooks Anderholt, Judge. Affirmed.
    Ava R. Stralla, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    No appearance for Plaintiff and Respondent.
    In 2015, Herbert Barahona was an inmate of a state prison in Imperial
    County. He was indicted for and pleaded no contest to possessing heroin and
    methamphetamine in a state prison (Pen. Code, § 4573.6).
    Barahona was sentenced to the middle term of three years to be served
    consecutive to his then existing prison sentence.
    In July 2022, Barahona filed a petition to have his conviction recalled
    based on Health and Safety Code section 11361.8, subdivisions (a) or (e),
    which applies to certain convictions for possession of cannabis. Barahona
    alleged he had been convicted of possessing marijuana while in prison. The
    trial court found Barahona was not eligible for relief under the statute and
    denied the petition.
    Barahona filed a timely notice of appeal.
    Appellate counsel has filed a brief pursuant to People v. Wende (1979)
    
    25 Cal.3d 436
     (Wende) indicating counsel has not been able to identify any
    arguable issues for reversal on appeal. Counsel asks the court to review the
    record for error consistent with the procedure established by Wende. We
    offered Barahona the opportunity to submit his own brief on appeal, but he
    has not responded.
    The conviction arises from a plea of no contest. There was no
    evidentiary hearing other than the grand jury transcript. We do not find it
    necessary to set out a statement of facts.
    DISCUSSION
    As we have noted, appellate counsel has filed a Wende brief and asks
    the court to review the record for error. To assist the court in its review, and
    in compliance with Anders v. California (1967) 
    386 U.S. 738
     (Anders), counsel
    has identified a possible issue that was considered in evaluating the potential
    merits of this appeal. Did the court err in ruling Barahona was ineligible for
    relief under Health and Safety Code section 11361.8?
    We have reviewed the entire record consistent with the rules
    established by Wende and Anders. We have not discovered any arguable
    issues for reversal on appeal. Competent counsel has represented Barahona
    on this appeal.
    2
    DISPOSITION
    The order denying Barahona’s petition for recall of his conviction under
    Health and Safety Code section 11361.8 is affirmed.
    HUFFMAN, Acting P. J.
    WE CONCUR:
    IRION, J.
    DO, J.
    3
    

Document Info

Docket Number: D080864

Filed Date: 3/6/2023

Precedential Status: Non-Precedential

Modified Date: 3/6/2023