Filed 12/23/14 P> v. Tlahuitzo CA1/5

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION FIVE




THE PEOPLE,

         Plaintiff and Respondent,                                          A142770

         v.                                                                 (Sonoma County
                                                                            Super. Ct. Nos. SCR-590599,
PAUL ANGELO TLAHUITZO,                                                      SCR-571005)

      Defendant and Appellant.
___________________________________/

         In case No. SCR-590599, appellant Paul Angelo Tlahuitzo pled no contest to
felony assault with force likely to produce bodily injury (Pen. Code, § 245, subd. (a)(1))1
and misdemeanor active participation in a criminal street gang (§ 186.22, subd. (a)). In
case No. SCR-571005, appellant pled no contest to felony robbery (§ 211) and admitted
personal use of a firearm (§ 12022.5, subd. (a)) and criminal street gang (§ 186.22, subd.
(b)(1)(C)) enhancements. Appellant entered his pleas and admissions with the
understanding he would receive an aggregate 11-year prison sentence. The court found
appellant’s waivers, pleas, and admissions were voluntary, knowing, and intelligent and
sentenced appellant to a total term of 11 years pursuant to the negotiated disposition.
         Over two years later, appellant filed a “Petition for Sentence Reduction and
Resentencing” in propria persona. Appellant: (1) claimed his sentence was “illegal[;]”


1
         All further statutory references are to the Penal Code.
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(2) cited Proposition 36, known as the Three Strikes Reform Act of 2012 (§ 1170.126);
(3) alleged ineffective assistance of counsel in connection with his plea; and (4) argued
his sentence violated principles articulated by the United States Supreme Court in
Cunningham v. California (2007) 549 U.S. 270 (Cunningham). The court denied the
petition, concluding “[t]his was an agreed-upon resolution pursuant to [section] 1192.5;
defendant signed waiver form agreeing to this sentence.”
       Appellant filed a notice of appeal in propria persona and we appointed counsel to
represent him on appeal. Appointed counsel filed a brief pursuant to People v. Wende
(1979) 25 Cal.3d 436 (Wende). Court-appointed counsel presents no argument for
reversal, but asks this court to conduct an independent review of the record pursuant to
Wende. (Id. at pp. 441-442.) Counsel informed appellant he had the right to file a
supplemental brief on his own behalf but appellant declined to do so.
       The denial of a section 1170.126 petition is appealable. (Teal v. Superior Court
(2014) 336 P.3d 686.) We have conducted our independent review and find no arguable
issues. Appellant’s sentence was not “illegal.” Appellant was ineligible for resentencing
pursuant to section 1170.126 because he admitted personal use of a firearm in the
commission of a felony pursuant to section 12022.5, a violent felony listed in section
667.5, subdivision (c)(8). (§ 1170.126, subd. (e)(1); People v. Hicks (2014) 231
Cal.App.4th 275.) Cunningham — which held unconstitutional California’s former
determinate sentence law assigning the trial judge authority to find facts to expose a
defendant to the upper term, rather than the then presumptive middle term — does not
assist appellant because he accepted a negotiated plea that allowed him to avoid a
potentially harsher sentence. (People v. Hester (2000) 22 Cal.4th 290, 295; People v.
Osuna (2014) 225 Cal.App.4th 1020.) Trial counsel adequately represented appellant at
every stage of the proceedings.
                                      DISPOSITION
       The order denying appellant’s “Petition for Sentence Reduction and
Resentencing” is affirmed.


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                                _________________________
                                Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Bruiniers, J.




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