People v. Divincenzo CA4/2

Filed 3/23/23 P. v. Divincenzo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E079825
v. (Super.Ct.No. FVI18001143)
RYAN MATTHEW DIVINCENZO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Debra Harris,
Judge. Affirmed.
Laura Arnold, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Ryan Matthew Divincenzo appeals the San Bernardino
County Superior Court’s denial of his petition for resentencing made pursuant to section
1385 of the Penal Code.1 We affirm.
BACKGROUND
In August 2019, defendant pled no contest to assault by means of force likely to
cause great bodily injury and admitted an infliction of great bodily injury enhancement
and a prior strike. (§§ 245, subd. (a), 1170.12, subds. (a)-(d), 12022.7, subd. (a).) The
court sentenced him to a total term of nine years in state prison, consisting of a midterm
of three years for the assault, doubled on account of the strike, and a consecutive upper
term of three years for the enhancement.
In 2021, the Legislature amended section 1385 to add subdivision (c). (Sen. Bill
No. 81 (Stats 2021, ch. 721, § 1).) The subdivision, which applies to all sentencings
occurring after the provision’s effective date of January 1, 2022, requires the trial court to
dismiss an enhancement if it makes a discretionary finding that dismissal would further
the interests of justice unless the dismissal would violate any initiative statute or would
endanger public safety. (§ 1385, subd. (c)(1), (2), (7).)
In June 2022, defendant moved for an order striking or staying the sentences
imposed for the strike and the enhancement pursuant to subdivision (c) of section 1385.
Defendant was present with counsel at the hearing when the court denied the motion.
Defendant appealed.
1 All further statutory references are to the Penal Code.
2
DISCUSSION
Defendant’s appointed appellate counsel has filed an opening brief that sets forth
statements of the case and facts but does not present any issues for adjudication. Counsel
requests us to independently review the record on appeal pursuant to People v. Wende
(1979) 25 Cal.3d 436. No potentially arguable issues are suggested in the brief.
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done. Although we are not required to independently review the record for
potential errors in a postjudgment appeal, we exercised our discretion to do so in keeping
with our opinion in People v. Griffin (2022) 85 Cal.App.5th 329. We found no arguable
issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
CODRINGTON
J.
SLOUGH
J.
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