People v. Valadez CA4/3 ( 2016 )

Filed 2/18/16 P. v. Valadez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G052051
v. (Super. Ct. No. 94CF1086)
RICKY GALLARDO VALADEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Thomas
A. Glazier, Judge. Affirmed.
Thomas K. Macomber, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
We appointed counsel to represent Ricky Gallardo Valadez on appeal.
Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his
client but advised the court he found no issues to argue on his behalf. We gave Valadez
30 days to file written argument on his own behalf. That time has passed, and Valadez
did not file any written argument.
Counsel filed a brief following the procedures outlined in People v. Wende
(1979) 25 Cal. 3d 436 (Wende). The court in Wende explained a Wende brief is one that
sets forth a summary of proceedings and facts but raises no specific issues. Under these
circumstances, the court must conduct an independent review of the entire record. When
the appellant himself raises specific issues in a Wende proceeding, we must expressly
address them in our opinion and explain why they fail. (People v. Kelly (2006) 40
Cal. 4th 106, 110, 120, 124.) Here, Valadez did not file a supplemental brief raising any
issues.
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the
court with its independent review, counsel provided the court with information as to
issues that might arguably support an appeal. Counsel raised one issue: Did the trial
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court abuse its discretion when it ruled that second degree residential burglary was not a
qualifying felony pursuant to Penal Code section 1170.18 (all further statutory references
are to the Penal Code)? We have reviewed the record in accordance with our obligations
under Wende and Anders, and considered the information provided by counsel. We
found no arguable issues on appeal. The judgment is affirmed.
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Although counsel raises the issue of error in the context of a second degree
burglary, the record clearly indicates the conviction was for a first degree burglary.
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FACTS
In September 1994, an amended information charged Valadez with
violating sections 459, 460, subdivision (a), and 461.1 (first degree burglary of inhabited
dwelling house) (count 1). The amended information alleged Valadez had two prior
serious convictions pursuant to section 667, subdivision (a)(1), and alleged two strikes
pursuant to section 667, subdivisions (d) and (e). In February 1995, after a jury convicted
Valadez of first degree residential burglary, the trial court sentenced him to 25 years to
life for count 1. In January 2015, Valadez filed a petition for resentencing pursuant to
section 1170.18. The trial court heard and denied the petition.
DISCUSSION
Section 1170.18 provides, in part: “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 [s]ections 11350, 11357, or 11377 of the Health and Safety Code, or
[s]ection[s] 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections
have been amended or added by this act.”
Valadez’s conviction for first degree burglary is not a felony described in
section 1170.18. Thus, the trial court correctly determined he was ineligible for
resentencing.
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DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
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