People v. Barahona CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of Imperial County · No. JCF34985
- Trial judge
- L. Brooks Anderholt
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), Joan K. Irion, Truc T. Do
Analysis
The trial court denied Barahona's petition to recall his conviction for possessing heroin and methamphetamine in prison, finding he was ineligible for relief under Health and Safety Code section 11361.8. The Court of Appeal affirmed the order, finding no arguable issues for reversal after an independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to recall conviction under Health and Safety Code section 11361.8“The trial court found Barahona was not eligible for relief under the statute and denied the petition.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for appellate review when appointed counsel files a brief stating no arguable issues exist.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and the court to conduct an independent review of the record.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing a no-merit appeal. It accurately notes that the underlying conviction involved heroin and methamphetamine, which are not covered by the cannabis-specific recall statute cited by the defendant.
How this analysis was made · dispute it
unusual dispositionThe Imperial County Superior Court denied Herbert Barahona's petition under Health and Safety Code section 11361.8 to recall his 2015 Penal Code section 4573.6 conviction for possessing heroin and methamphetamine in prison, finding him ineligible because the statute applies only to certain cannabis convictions. On appeal, appointed counsel filed a Wende brief, Barahona filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to recall conviction under Health and Safety Code section 11361.8 on the ground that defendant was ineligible for relief“The trial court found Barahona was not eligible for relief under the statute and denied the petition.” | unclear | correct | agree with court Section 11361.8 provides recall and resentencing relief only for specified cannabis offenses. The record shows Barahona pleaded no contest to possessing heroin and methamphetamine in prison under Penal Code section 4573.6, not a cannabis offense, so he is outside the statute on its face. Even if the conviction had involved cannabis, People v. Raybon (2021) 11 Cal.5th 1056 holds Proposition 64 did not legalize cannabis possession in prison under section 4573.6. The trial court's ineligibility finding is therefore correct, and the appellate court's Wende review properly found no arguable issue. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal independently reviews the record for error in a first appeal of right.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous should so advise the court and identify anything in the record that might arguably support the appeal.
- missed: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende/Anders independent review is not constitutionally required in appeals from postconviction orders; the court may dismiss when counsel files a no-issue brief and the defendant, after proper notice, files no supplemental brief, though the court retains discretion to conduct independent review. The opinion applied Wende to a postconviction section 11361.8 appeal without addressing this binding, earlier-decided authority.
- missed: People v. Raybon (2021) 11 Cal.5th 1056 — Proposition 64 did not legalize possession of cannabis in state prison; convictions under Penal Code section 4573.6 remain valid. This authority directly answers the Anders issue counsel identified and would have shown the petition fails even on defendant's own allegation that he possessed marijuana.
The appellate opinion: sound with gaps — The result is clearly right because a Penal Code section 4573.6 conviction for heroin and methamphetamine is not a cannabis offense covered by section 11361.8, and Raybon forecloses relief even for cannabis possession in prison. The opinion nonetheless applies Wende to a postconviction appeal without acknowledging People v. Delgadillo, decided three months earlier, and does not state the substantive basis for ineligibility or cite Raybon.
Opinion
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.
2 DISPOSITION The order denying Barahona’s petition for recall of his conviction under Health and Safety Code section 11361.8 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12