People v. Baldino CA4/1

Filed 5/26/21 P. v. Baldino CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078440

Plaintiff and Respondent,

v. (Super. Ct. No. SCD258141)

BRIAN BALDINO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Roderick W. Shelton, Judge. Affirmed. Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2016, Brian Baldino was charged, along with another person with murder. A mistrial was declared in Baldino’s case. In 2017, Baldino pleaded

guilty to voluntary manslaughter (Pen. Code,1 § 192, subd. (a)). Baldino also

1 All further statutory references are to the Penal Code.

admitted he was armed with a firearm (§ 12022, subd. (a)(1)). Baldino was sentenced to the stipulated term of 12 years in prison. In 2019, Baldino filed a form petition for resentencing under

section 1170.95. The court did not appoint counsel or hold a hearing.2 The court denied Baldino’s petition by written order finding Baldino’s conviction of voluntary manslaughter rendered him ineligible for relief under section 1170.95. The court found Baldino had failed to make a prima facie case for relief under the statute. Baldino 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 as mandated by Wende. We offered Baldino the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS Counsel has summarized the facts of the offense as they are contained in the probation officer’s report. We incorporate these background facts here for convenience. On February 10, 2008, Ms. Varano lent her car, a black Mustang, to her boyfriend, Mr. Sumner, who then let two others test drive it to see if it could be fixed. The men who took it, one of them Destin Withers, the co-defendant, did not return the Mustang. It was later found in an apartment complex parking lot.