People v. Lopez CA4/1

Filed 2/9/22 P. v. Lopez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D079521

Plaintiff and Respondent,

v. (Super. Ct. No. SCE252974)

ARMANDO LOPEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Roderick W. Shelton, Judge. Affirmed. David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2006, a jury convicted Armando Lopez of one count of carjacking

(Pen. Code,1 § 215, subd. (a)); being a felon in possession of a firearm (§ 12021, subd. (a)(1)); and two counts of assault with a firearm (§ 245, subd. (a)(2)). The jury found true allegations that Lopez used a firearm

1 All further statutory references are to the Penal Code.

(§§ 12022.5, subd. (a), 12022.53, subd. (b)) and that Lopez personally discharged a firearm during the carjacking (§ 12022.53, subd. (c)). Lopez admitted a serious felony prior conviction (§ 667, subd. (a)(1)), a prison prior (§ 667.5, subd. (b)), and a strike prior (§ 667, subds. (b)-(i)). Lopez was sentenced as a second strike offender to a term of 39 years eight months in prison. In 2021, Lopez filed a motion to order a hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin hearing) to make a record for potential consideration of youth offender parole. Lopez also requested the court to strike the firearm enhancements under the new discretionary authority of Senate Bill No. 620. The court denied the motions by written order. The court found that Lopez was not eligible for youth offender parole because he was sentenced under the Three Strikes law. Thus, the court found that a “Franklin hearing” to make a record for future parole consideration was not appropriate. The court also found Senate Bill No. 620 did not apply retroactively to Lopez’s sentence because his conviction was final years before Senate Bill No. 620 was enacted. Lopez 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 Lopez the opportunity to