People v. Barahona CA4/1

Filed 3/6/23 P. v. Barahona CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D080864

Plaintiff and Respondent,

v. (Super. Ct. No. JCF34985)

HERBERT BARAHONA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Imperial County, L. Brooks Anderholt, Judge. Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2015, Herbert Barahona was an inmate of a state prison in Imperial County. He was indicted for and pleaded no contest to possessing heroin and methamphetamine in a state prison (Pen. Code, § 4573.6). Barahona was sentenced to the middle term of three years to be served consecutive to his then existing prison sentence.

In July 2022, Barahona filed a petition to have his conviction recalled based on Health and Safety Code section 11361.8, subdivisions (a) or (e), which applies to certain convictions for possession of cannabis. Barahona alleged he had been convicted of possessing marijuana while in prison. The trial court found Barahona was not eligible for relief under the statute and denied the petition. Barahona 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 consistent with the procedure established by Wende. We offered Barahona the opportunity to submit his own brief on appeal, but he has not responded. The conviction arises from a plea of no contest. There was no evidentiary hearing other than the grand jury transcript. We do not find it necessary to set out a statement of facts. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified a possible issue that was considered in evaluating the potential merits of this appeal. Did the court err in ruling Barahona was ineligible for relief under Health and Safety Code section 11361.8? We have reviewed the entire record consistent with the rules established by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Barahona on this appeal.