Filed 2/4/22 P. v. Pereda CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B312213
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.BA468197)
v.
ANTHONY PEREDA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lynne M. Hobbs, Judge. Dismissed.
Larenda R. Delaini, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Appellant Anthony Pereda appealed the denial of his
petition for resentencing under former Penal Code, section 1170,
subdivision (d)(1).1 Appellant’s appointed counsel filed a brief on
appeal raising no issues and invoking People v. Serrano (2012)
211 Cal.App.4th 496 (Serrano). We also have conducted an
independent examination of the entire record pursuant to People
v. Wende (1979) 25 Cal.3d 436 (Wende), and conclude no arguable
issues exist. We therefore dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On July 25, 2019, the People filed an information charging
appellant with two counts of attempted premeditated murder
(§§ 664, 187, subd. (a)) (counts 1 and 2), shooting at an inhabited
dwelling (§ 246) (count 3), and in a separate incident, causing
serious bodily injury while evading arrest in a vehicle (Veh. Code,
§ 2800.3, subd. (a)) (count 4). The information further alleged
that as to counts 1, 2, and 3, appellant personally used and
discharged a firearm causing great bodily injury (§ 12022.53,
subds. (b)-(d)), and committed the offenses for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(C).)
On September 30, 2020, appellant pled no contest to counts
1 and 3, with count 1 amended to second degree attempted
murder. Appellant also admitted the firearm allegation under
section 12022.53, subdivision (b). The court sentenced appellant
to a total of 17 years in prison, consisting of the middle term of
1 All further statutory references are to the Penal Code
unless otherwise indicated. At the time of appellant’s petition,
section 1170, subdivision (d)(1) allowed the court to recall a
sentence and resentence the defendant within 120 days of the
date of commitment. Section 1170 was amended effective
January 1, 2022.
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seven years on count 1, plus 10 years for the enhancement under
section 12022.53, subdivision (b), and a concurrent term of three
years on count 3. In addition, appellant waived 364 days of
custody credit.
On December 17, 2020, appellant moved for resentencing
under former section 1170, subdivision (d)(1). Relying on the Los
Angeles County District Attorney’s Special Directive 20-08, dated
December 7, 2020, appellant asserted that the District Attorney’s
office was no longer pursuing sentence enhancements and would
not oppose requests for resentencing under section 1170,
subdivision (d)(1). Appellant asserted that had the Special
Directive been in place at the time of his sentencing, his sentence
would have been only seven years, without the 10-year
enhancement under section 12022.53, subdivision (b). He
asserted that under the equal protection provisions of the United
States and California Constitutions, he was entitled to the same
treatment as those being sentenced after the Special Directive
became effective.
The People opposed appellant’s resentencing request. The
People stated that appellant was a known member of the Street
Villains gang, and in the crime at issue he and others drove to a
house known to be a rival gang’s hangout. A woman was on the
front porch with a three-year-old child playing next to her; five
more people were inside the house. From the car, appellant fired
at the house, hitting the three-year-old child “in the face with an
exit wound near the right side of her neck.” The driver of the car
was arrested about a week later; he was tried and convicted.
Appellant was later arrested and charged.
The People argued that section 1170, subdivision (d)(1)
allows for a sentence modification “in the interest of justice,”
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which did not apply in this case. The People noted that appellant
was sentenced on a negotiated plea deal, which included
appellant’s admission of the firearm allegation. The opposition
continued, “Given [appellant’s] maximum exposure of multiple
life sentences in state prison, this settlement was reasonable and
furthered justice in that [appellant] received a determinate
sentence. Simply put: The People would not have agreed to a plea
without acceptance of these terms.”
In a written response, appellant again asked the court to
use its discretion to strike the section 12022.53, subdivision (b)
enhancement and sentence him to a term of seven years.
Appellant argued that striking the enhancement would be in the
interest of justice, because he was sentenced more harshly than
he would have been had he been sentenced after the Special
Directive was in place. He also reasserted his equal protection
arguments.
At the hearing, the prosecutor asserted that plea deals
were not being negotiated differently in light of the Special
Directive, and in this case, “we would still be seeking a sentence
somewhere in the neighborhood of 17 years, and we would use
special allegations to get there.” The prosecutor further argued
that a sentence reduction would not be in the interest of justice.
Appellant’s counsel submitted on the written motion. The court
stated that it had read all the papers, “and the court declines to
exercise its discretion, finding to do so is not within the interests
of justice. So your motion is denied.”
Appellant timely appealed.
DISCUSSION
Appellant’s appointed counsel filed a brief raising no issues
and invoking Serrano, supra, 211 Cal.App.4th 496. Under
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Serrano, when appointed counsel raises no issue in an appeal
from a post-judgment proceeding, an appellate court may dismiss
the appeal if the appellant fails to file a supplemental brief. (Id.,
at pp. 498, 503.) We directed counsel to send the record and a
copy of the brief to appellant, and notified appellant of his right
to respond within 30 days. We received no response. Under
those procedures, we have no duty independently to review the
record for reasonably arguable issues. (See People v. Cole (2020)
52 Cal.App.5th 1023, 1039-1040, review granted Oct. 14, 2020,
S264278.) We have nonetheless independently reviewed the full
record under Wende, supra, 25 Cal.3d 436, and are satisfied
appellant’s attorney has fully complied with the responsibilities
of counsel and no arguable issue exists. (People v. Kelly (2006) 40
Cal.4th 106, 119; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
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