Filed 9/14/20 P. v. Solorio CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
ADRIAN SOLORIO,
Defendant and Appellant. G0 5 8712
(Super. Ct. No. 06CF1702 )

O P I N I O N

Appeal from a post

judgment order of the Superior Court of Orange County, Kimberly Menninger , Judge. Affirmed.

John F. Schuck , under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 In 2009, a jury convicted appellant Adrian Solorio of committ ing first degree murder and street terrorism when he was 22 years old

. (Penal Code, §§ 187, 186.22, subd. (a); a ll further undesignated statutory references are to the Penal Code .) The jury also found Solorio committed the murder to benefit a criminal street gang, as an active gang participant, and tha t he personally discharged a firearm causing death . (§§ 186.22, subd. (b), 190.2, subd. (a)(22), and 12022.53, subd. (d).) T he trial court sentenced Solorio to life in prison without the possibility of parole f or the murder and an additional 25

- years

- to

- life term for the firearm finding

. We affirmed the judgment in
2011. ( People v. Solorio ( Jan. 28 , 20 11 , G0 42192 ) [nonpub. opn.].)

In 2019, Solorio petition ed for resentencing on the firearm finding and for a hearing related to youth offender parole eligibility . The trial court denied Solorio’s petitions and he appealed the court’s “[d]enial of PC 12022.53

. ” H is appointed appellate counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 ( Wende ) and Anders v. Calif ornia (1967) 386 U.S. 738 and Solorio has not filed a supplemental brief. Because our review of the record discloses no arguable issue, we affirm the postjudgment order denying Solorio’s petition for resentencing

.

I
F ACTS AND P ROCEDURAL H ISTORY The fact s underlying this case were discussed in our earlier opinion affirming Solorio’s convictions. In 2005 , then 22

- year

- old Solorio fatally shot a rival

gang member during an argument at a party. As noted, t he jury convicted Solorio of first degree murder and street terrorism . It also found true criminal street gang and firearm allegations. I n 201 1, w e affirmed the judgment impos ing a sentence of life in prison without the possibility of parole and an additional term of 25 years to life . ( People v

. Solorio (Jan. 28, 2011, G042192) [nonpub. opn.].) The same year, t he California3

Supreme Court denied Solorio’s petition for review

. ( Id. , review den., May 11, 2011,
S191078 .)
In 2013 , Senate Bill No. 2 6 0 (S en. B ill No. 26 0) was passed to create a parole consideration scheme for certain youth offenders with qualifying sentences

. (See People v. Franklin (2016) 63 Cal.4th 261 , 285

- 286 ( Franklin ) .) In 2016, the California Supreme Court in Franklin analyzed the scheme in a case where a 16 year old who f atally shot another teenager challenged the constitutionality of “ his 50

- year

- to

- life sentence .” ( Id. at p. 2 68

. ) Franklin remanded the case to the trial court to further develop a factual
record for th e defendant’s future Sen. Bill No. 260 “ youth offender parole hearing

. ” ( I d. at p. 284

. ) In 2017, Senate Bill No. 620 (S en. B ill No. 620) became law, effective 2018, amend ing sectio ns dealing with firearm sentencing enhancements

. Relevant here,
i t granted trial courts discretion to strike section 1 2022.53 ’s enhancements. ( § 12022.53 , subd. (h), as amended by Stats. 2017, ch. 682, § 2.)

I n 2019, Solorio petition ed the trial court for a hearing under Franklin and
to strike his firearm sentence enhancement under S en. B ill No. 620

. As noted, t he court
denied the petition.

II
D ISCUSSION Following the Wende guidelines, we have reviewed c ounsel’s brief and the entire appellate record

. P er Anders , supra , 386 U.S. 738 , counsel’s brief suggests two potential legal questions to assist the court in its review : (1) “Does Sen. Bill. [ No. ] 620

. .

. apply to a case that was final prior to [its] enactment . . . ?” ; and (2) i s Solorio “entitled to a youth offender parole hearing” or “a Franklin hearing to make a record of youth

re lated mitigating factors?”4 I t is clear Solorio is not entitled to any benefit under S en. B ill No. 620 ’s
amendment of section 12022.53 because it went into effect well after the judgment against him became final

. ( People v. Vieira (2005) 35 Cal.4th 264, 3 0 5 [ “ a defendant generally is entitled to benefit from amendments that become effective while his case is on appeal” ]. ) “‘ [ R] etroactive application of an amendment ’ ” becomes unavailable when direct appeal relief is no longer available , generally marked by the expiration of “ ‘ time for petitioning for a writ of certiorari in the United States Supreme Court.’” ( Id. at
p. 306 , quoting People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5 .) As noted, the California Supreme Court denied Solori o ’s petition for review of our opinion affirming his judgment in May 2011

. ( People v. Solorio (Jan. 28, 2011, G042192) [nonpub. opn.] , review den., May 11, 2011, S191078

. ) Accordingly, t he judgment in this case became
final the same year (U.S. Supreme Ct . Rules, rule 13 ( 1 ) ) , seven years before S en. B ill No.
620 became effective.

Appellate counsel’s second legal question

— about potential entitlement to a youth offender parole hearing

— is not properly before this court, based on Solorio ’s notice of appeal. ( People v. Dyer (1969) 269 Cal.App.2d 209, 212 [scope of appeal is defined by underlying notice of appeal].) Furthermore , we note the question would not

r aise an arguable issue in an y event because a provision in S en. B ill No. 260’s statutory scheme specifically excludes Solorio’s type of sentence from youth offender parole eligibility . That is, a sentence of life without the possibility of parole where the defendant was over 18 year s old when the crime was committed is explicitly ineligible for youth offender parole release under section 3051, subd ivision (h).

In sum, o ur review of the entire record, including the potential issues identified by counsel, does not show the existence o f an arguable issue. ( Wende , supra , 25 Cal.3d at pp. 442

- 443.) Consequently, we affirm. ( Id . at p. 443.)5 III
D ISPOSITION The postjudgment order denying Solorio’s petition for resentencing under
section 12022.53 is affirmed.

ARONSON , J.

WE CONCUR:

O’LEARY, P. J.

FYBEL, J.