People v. Barahona CA4/1

Filed 3/6/23 P. v. Barahona CA4/1
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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.
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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.
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