People v. Smith CA4/1 ( 2021 )

Filed 8/18/21 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D078632
Plaintiff and Respondent,
v. (Super. Ct. No. 16CR016505)
MARK CHRISTOPHER SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino
County, Lisa M. Rogan, Judge. Affirmed.
Mark Christopher Smith, in pro. per.; and Kevin Smith, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2017, following a joint jury trial with a codefendant, Mark
Christopher Smith was convicted of three counts of robbery (Pen. Code,1
§ 211). The jury also found Smith personally used a firearm in each count
and found true enhancements alleged under section 12022.53, subdivision (b).
1 All further statutory references are to the Penal Code.
The court sentenced Smith to a determinate term of 23 years eight months in
prison. The court also imposed a $10,000 restitution fine.
Smith appealed and this court affirmed the convictions but remanded
the case to permit the trial court to exercise newly acquired discretion to
strike or modify the firearm enhancements. (People v. Moore, et al. (Jan. 24,
2019, D074567) [nonpub. opn.].)2
On remand, Smith petitioned the trial court to exercise its discretion to
strike or modify the enhancements. The court appointed counsel and held a
hearing. After considering the petition, the facts of the offenses and Smith’s
favorable prison record, the court declined to strike or modify the
enhancements and reinstated the sentence. The court did reduce the
restitution fine to $250.
In its statements denying Smith’s petition, the trial judge
acknowledged her discretion to strike or modify the firearm enhancements
and recognized Smith had done well in prison. The judge concluded the facts
of the offenses and the “extensive use of the gun” during the robberies
convinced the judge that striking or modifying the enhancements was not
warranted.
Smith filed a timely notice of appeal from the order denying his request
to modify his sentence.
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 as mandated by Wende. We offered Smith the opportunity to
2 We have taken judicial notice of our prior opinion in case No. D074567.
We decline, however, to take judicial notice of similar but separate
postjudgment proceedings regarding the codefendant (case No. D076879).
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file his own brief on appeal and he has responded with a supplemental brief.
We will address Smith’s submission below.
STATEMENT OF FACTS
The facts of the underlying offenses are fully set forth in our prior
opinion. We will not repeat them here. (People v. Moore, et al., supra,
D074567.)
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, and in
compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has identified the following possible issues that were considered in evaluating
the potential merits of this appeal:
1. Did the lower court abuse its newly granted discretion under
section 12022.53, subdivision (h) by denying Smith’s motion for resentencing
to strike his enhancements for personal use of a handgun under
section 12022.53, subdivision (b)?
2. Did the lower court abuse its newly granted discretion under
section 12022.53, subdivision (h) by not considering whether to reduce the
base term of the enhancement to three or four years, as authorized by
section 12022.53, subdivision (b)?
In his supplemental brief, Smith argues his sentence amounts to cruel
and unusual punishment. In support of his contention, Smith includes an
article and other materials which are not part of the record on this appeal.
To the extent Smith wishes to pursue a constitutional challenge to his
sentence, he must make a record in the trial court to support such challenge.
The record on this appeal does not provide support for the contentions he
raises in his supplemental brief. Smith’s remedy, if any, is by way of a
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petition for habeas corpus filed in the Superior Court. (People v. Mendoza
Tello (1997) 15 Cal.4th 264.)
We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Smith on this appeal.
DISPOSITION
The order denying Smith’s motion for resentencing is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.
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