People v. McKissick CA1/4

Filed 2/25/21 P. v. McKissick CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, A161348

v. (Alameda County JOSEPH AARON MCKISSICK, Super. Ct. No. 17CR19342B) Defendant and Appellant.

On February 8, 2018, defendant Joseph Aaron McKissick pled no contest to one count of second degree robbery (Pen. Code, § 211) with an enhancement for personal use of a firearm (Pen. Code1, § 12022.5, subd. (a)). Pursuant to the plea agreement, the trial court sentenced defendant to eight years in state prison. On August 20, 2020, defendant filed a petition pursuant to section 1170.22, requesting recall and resentencing or dismissal of his conviction. The trial court denied the petition, reasoning that section 1170.22 relief was unavailable to defendant because that statute related to individuals previously convicted of

All further undesignated statutory references are to the 1

Penal Code.

1

violating section 647f (former section 647f added by Stats. 1988, ch. 1597, § 1 and repealed by Stats. 2017, ch. 537, § 8, effective January 1, 2018) (section 647f). Appellant’s counsel filed an opening brief asking that this court conduct an independent review of the record for arguable issues—i.e., those that are not frivolous, as required by People v. Wende (1979) 25 Cal.3d 436. Counsel also informed appellant that he had the right to file a supplemental brief on her own behalf, but appellant declined to do so. Undertaking a discretionary review, we agree with appellant’s counsel that there are no meritorious issues and affirm the judgment.

I. BACKGROUND Defendant, an inmate at the California Men’s Colony in San Luis Obispo, filed a petition pursuant to section 1170.22 on August 20, 2020. He checked a box stating that he waived his right to be present at any hearing on the matter and he agreed that the petition could be heard without his appearance. In the handwritten portion of his section 1170.22 petition, defendant admitted that he had been convicted of second degree robbery with a firearm enhancement, and he stated that he sought “a modification of his current state prison sentence based on his rehabilitation, academic achievements and the high risk of being effected [sic] with Covid 19.” He did not allege that he had been convicted of violating section 647f. The trial court denied the petition in a written order dated October 20, 2020. In so ruling, the court found that section 1170.22 was inapplicable to defendant, as that statute provides