People v. Smart CA3

Filed 4/25/22 P. v. Smart CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C094289

Plaintiff and Respondent, (Super. Ct. No. 04F03478)

v.

JARVELL DEANDRAE SMART,

Defendant and Appellant.

Defendant Jarvell Deandrae Smart appeals from the denial of his postjudgment motion for a juvenile fitness/transfer proceeding, which he filed in propria persona. At the time defendant filed his motion he was represented by counsel for a postjudgment hearing pursuant to In re Cook (2019) 7 Cal.5th 439 and People v. Franklin (2016) 63 Cal.4th 261, and his counsel declined to file the motion on defendant’s behalf. In this court, appointed counsel for defendant asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979)

1

25 Cal.3d 436 (Wende).) Although appellate counsel mentions in his Wende brief that one issue may be whether the refusal to file and argue defendant’s motion in the trial court constituted a denial of the right to assistance of counsel, appellate counsel did not argue the merits of the issue. In any event, having reviewed the record, we have found no arguable error that would result in a disposition more favorable to defendant. We will affirm the judgment. I In 2004, a jury convicted defendant of assault with a firearm (Pen. Code, § 245, subd. (a))1 and discharging a firearm at an occupied vehicle (§ 246), and found true allegations that the assaults were carried out for the benefit of a street gang (§ 186.22, subd. (b)(1)) and that the codefendant personally discharged a firearm (§ 12022.53, subds. (d), (e)). Defendant was 15 years old at the time of the offense and was charged as an adult based on allegations that he personally used a firearm. (See Welf. & Inst. Code, § 707, former subd. (d)(2)(B).) However, the jury did not find true allegations that defendant personally used a firearm under sections 12022.5 and 12022.53, or that he personally inflicted great bodily injury under section 12022.7. On appeal this court ordered modification of defendant’s sentence to reflect an aggregate term of 28 years to life in prison and otherwise affirmed his convictions. (People v. Smart (Dec. 19, 2006, C049931) opn. ordered par. pub.) In 2021, defendant filed a motion for a juvenile fitness/transfer hearing pursuant to Proposition 57 (approved by voters, Gen. Elec. (Nov. 8, 2016)). He argued he was tried as an adult based on the allegations that he personally discharged a firearm, but those allegations were found not true. As a result, defendant asserted he should have returned to juvenile court. He claims Assembly Bill No. 1423 (2019-2020 Reg. Sess.), which