People v. Solorio CA4/3

Filed 9/14/20 P. v. Solorio 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G058712
v. (Super. Ct. No. 06CF1702)
ADRIAN SOLORIO, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Kimberly Menninger, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
In 2009, a jury convicted appellant Adrian Solorio of committing first
degree murder and street terrorism when he was 22 years old. (Penal Code, §§ 187,
186.22, subd. (a); all further undesignated statutory references are to the Penal Code.)
The jury also found Solorio committed the murder to benefit a criminal street gang, as an
active gang participant, and that he personally discharged a firearm causing death. (§§
186.22, subd. (b), 190.2, subd. (a)(22), and 12022.53, subd. (d).) The trial court
sentenced Solorio to life in prison without the possibility of parole for the murder and an
additional 25-years-to-life term for the firearm finding. We affirmed the judgment in
2011. (People v. Solorio (Jan. 28, 2011, G042192) [nonpub. opn.].)
In 2019, Solorio petitioned for resentencing on the firearm finding and for a
hearing related to youth offender parole eligibility. The trial court denied Solorio’s
petitions and he appealed the court’s “[d]enial of PC 12022.53.” His appointed appellate
counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal. 3d
436 (Wende) and Anders v. California (1967) 386 U.S. 738 and Solorio has not filed a
supplemental brief. Because our review of the record discloses no arguable issue, we
affirm the postjudgment order denying Solorio’s petition for resentencing.
I
FACTS AND PROCEDURAL HISTORY
The facts underlying this case were discussed in our earlier opinion
affirming Solorio’s convictions. In 2005, then 22-year-old Solorio fatally shot a rival
gang member during an argument at a party. As noted, the jury convicted Solorio of first
degree murder and street terrorism. It also found true criminal street gang and firearm
allegations. In 2011, we affirmed the judgment imposing a sentence of life in prison
without the possibility of parole and an additional term of 25 years to life. (People v.
Solorio (Jan. 28, 2011, G042192) [nonpub. opn.].) The same year, the California
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Supreme Court denied Solorio’s petition for review. (Id., review den., May 11, 2011,
S191078.)
In 2013, Senate Bill No. 260 (Sen. Bill No. 260) was passed to create a
parole consideration scheme for certain youth offenders with qualifying sentences. (See
People v. Franklin (2016) 63 Cal. 4th 261, 285-286 (Franklin).) In 2016, the California
Supreme Court in Franklin analyzed the scheme in a case where a 16 year old who fatally
shot another teenager challenged the constitutionality of “his 50-year-to-life sentence.”
(Id. at p. 268.) Franklin remanded the case to the trial court to further develop a factual
record for the defendant’s future Sen. Bill No. 260 “youth offender parole hearing.” (Id.
at p. 284.)
In 2017, Senate Bill No. 620 (Sen. Bill No. 620) became law, effective
2018, amending sections dealing with firearm sentencing enhancements. Relevant here,
it granted trial courts discretion to strike section 12022.53’s enhancements. (§ 12022.53,
subd. (h), as amended by Stats. 2017, ch. 682, § 2.)
In 2019, Solorio petitioned the trial court for a hearing under Franklin and
to strike his firearm sentence enhancement under Sen. Bill No. 620. As noted, the court
denied the petition.
II
DISCUSSION
Following the Wende guidelines, we have reviewed counsel’s brief and the
entire appellate record. Per Anders, supra, 386 U.S. 738, counsel’s brief suggests two
potential legal questions to assist the court in its review: (1) “Does Sen. Bill. [No.] 620 . .
. apply to a case that was final prior to [its] enactment . . . ?”; and (2) is Solorio “entitled
to a youth offender parole hearing” or “a Franklin hearing to make a record of youth-
related mitigating factors?”
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It is clear Solorio is not entitled to any benefit under Sen. Bill No. 620’s
amendment of section 12022.53 because it went into effect well after the judgment
against him became final. (People v. Vieira (2005) 35 Cal. 4th 264, 305 [“a defendant
generally is entitled to benefit from amendments that become effective while his case is
on appeal”].) “‘[R]etroactive application of an amendment’” becomes unavailable when
direct appeal relief is no longer available, generally marked by the expiration of “‘time
for petitioning for a writ of certiorari in the United States Supreme Court.’” (Id. at
p. 306, quoting People v. Nasalga (1996) 12 Cal. 4th 784, 789, fn. 5.) As noted, the
California Supreme Court denied Solorio’s petition for review of our opinion affirming
his judgment in May 2011. (People v. Solorio (Jan. 28, 2011, G042192) [nonpub. opn.],
review den., May 11, 2011, S191078.) Accordingly, the judgment in this case became
final the same year (U.S. Supreme Ct. Rules, rule 13(1)), seven years before Sen. Bill No.
620 became effective.
Appellate counsel’s second legal question—about potential entitlement to a
youth offender parole hearing—is not properly before this court, based on Solorio’s
notice of appeal. (People v. Dyer (1969) 269 Cal. App. 2d 209, 212 [scope of appeal is
defined by underlying notice of appeal].) Furthermore, we note the question would not
raise an arguable issue in any event because a provision in Sen. Bill No. 260’s statutory
scheme specifically excludes Solorio’s type of sentence from youth offender parole
eligibility. That is, a sentence of life without the possibility of parole where the
defendant was over 18 years old when the crime was committed is explicitly ineligible
for youth offender parole release under section 3051, subdivision (h).
In sum, our review of the entire record, including the potential issues
identified by counsel, does not show the existence of an arguable issue. (Wende, supra,
25 Cal.3d at pp. 442-443.) Consequently, we affirm. (Id. at p. 443.)
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III
DISPOSITION
The postjudgment order denying Solorio’s petition for resentencing under
section 12022.53 is affirmed.
ARONSON, J.
WE CONCUR:
O’LEARY, P. J.
FYBEL, J.
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