People v. Guerra CA2/5

Filed 6/4/14 P. v. Guerra CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B253981
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA053877)
v.
PEDRO ORLANDO GUERRA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Affirmed.
Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Pedro Orlando Guerra, appeals from a December 19, 2013 order
denying his motion for recall of sentence pursuant to Penal Code section 1170.126.1 On
November 1, 2004, a jury convicted defendant of attempted first degree residential
burglary. (§§ 664, 459.) Defendant had sustained two prior serious felony convictions.
On March 4, 2005, defendant was sentenced to 35 years to life pursuant to sections 667,
subdivisions (a)(1) and (e)(2) and 1170.12, subdivision (c)(2). We affirm.
II. DISCUSSION
We appointed counsel to represent defendant on appeal. After examining the
record, appointed appellate counsel filed an “Opening Brief” in which no issues were
raised. Instead, appointed appellate counsel requested that this court independently
review the entire record on appeal pursuant to People v. Wende (1979) 25 Cal. 3d 436,
441. (See Smith v. Robbins (2000) 528 U.S. 259, 277-284.) On March 21, 2014, we
advised defendant that he had 30 days within which to personally submit any contentions
or arguments he wishes us to consider. We have examined the entire record and are
satisfied appointed appellate counsel has fully complied with her responsibilities.
The argument defendant raised in the trial court is frivolous. Defendant is
ineligible for resentencing because he was convicted of attempted first degree burglary, a
serious felony, and sentenced to an indeterminate term of life imprisonment. (§§
1170.126, subd. (e)(1); 1192.7, subds. (c)(18) & (c)(39).)
On April 1, 2013, defendant filed a letter with this court. Defendant argues he
pled guilty to one of his two prior serious felony offenses without ever having been
advised that he had a right to go to trial. Defendant asserts that had he been so advised,
he would not have entered a guilty plea. The advisement issue is outside the record on
1 Further statutory references are to the Penal Code unless otherwise noted.
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appeal; it cannot be considered on appeal from the trial court’s order denying defendant’s
resentencing petition. (People v. Waidla (2000) 22 Cal. 4th 690, 703, fn. 1 [“An appeal is
‘limited to the four corners of the [underlying] record on appeal’”]; In re Carpenter
(1995) 9 Cal. 4th 634, 646 [same].) Further, the issue was not raised in conjunction with
his sentence recall application and is thus forfeited. (People v. Chism (May 5, 2014,
S101984) ___ Cal.4th ___, ___[2014 WL 1759581*17]; People v. Boyer (2006) 38
Cal. 4th 412, 441, fn. 17.)
III. DISPOSITION
The December 19, 2013 order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
MOSK, J.
KRIEGLER, J.
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