People v. Jimenez CA5

Filed 6/14/21 P. v. Jimenez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F080896 Plaintiff and Respondent, (Fresno Super. Ct. No. CF96572117) v.

JESUS CARMELO JIMENEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Detjen, J. and Franson, J.

INTRODUCTION Appellant and defendant Jesus Carmelo Jimenez was convicted of two counts of being a felon in possession of a firearm and sentenced to a third strike term. He filed a petition for resentencing with the superior court pursuant to Penal Code section 1016.8,1 and it was denied.2 On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm. FACTS On April 16, 1994, police responded to a report of shots fired. They contacted defendant and another man. The officers conducted a patdown search of the two men for weapons. Defendant was carrying a .22-caliber revolver containing six spent casings. There were eight live .22-caliber rounds in his pocket. On November 15, 1996, police responded to a call and found defendant yelling at people at an apartment complex. He lifted his shirt, and everyone ran away. He then pulled out a handgun from his waistband and waved it toward the apartment windows as he continued to yell. After about a minute, he put the gun back into his waistband. When he noticed the police, he put the gun into a trash can. The recovered gun was a .22- caliber Luger-type handgun loaded with a clip containing 10 live rounds.

1 All further statutory citations are to the Penal Code unless otherwise indicated. 2 Assembly Bill 1618 added section 1016.8, effective January 1, 2020. (Stats. 2019, ch. 586, § 1.) “The statute codifies the holding of Doe v. Harris (2013) 57 Cal.4th 64 …, i.e., ‘that the circumstance “the parties enter into a plea agreement does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them.” ’ [Citation.] The statute further declares, ‘A provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy.’ [Citation.]” (People v. Barton (2020) 52 Cal.App.5th 1145, 1152.)