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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered 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.

 G058712

 (Super. Ct. No. 06CF1702)

 O P I N I O N

Appeal from a postjudgment 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 committing first 

degree murder and street terrorism when he was 22 years old. (Penal Code, §§ 187, 

186.22, subd. (a); all 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 that he personally discharged a firearm causing death. (§§ 

186.22, subd. (b), 190.2, subd. (a)(22), and 12022.53, subd. (d).) The trial court 

sentenced Solorio to life in prison without the possibility of parole for 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, 2011, G042192) [nonpub. opn.].)

In 2019, Solorio petitioned 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.” His appointed appellate 

counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 

436 (Wende) and Anders v. California (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

FACTS AND PROCEDURAL HISTORY

The facts 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, the jury convicted Solorio of first 

degree murder and street terrorism. It also found true criminal street gang and firearm 

allegations. In 2011, we affirmed the judgment imposing 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, the California 
3

Supreme Court denied Solorio’s petition for review. (Id., review den., May 11, 2011, 

S191078.)

In 2013, Senate Bill No. 260 (Sen. Bill No. 260) 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 fatally 

shot another teenager challenged the constitutionality of “his 50-year-to-life sentence.” 

(Id. at p. 268.) Franklin remanded the case to the trial court to further develop a factual 

record for the defendant’s future Sen. Bill No. 260 “youth offender parole hearing.” (Id.

at p. 284.)

In 2017, Senate Bill No. 620 (Sen. Bill No. 620) became law, effective 

2018, amending sections dealing with firearm sentencing enhancements. Relevant here, 

it granted trial courts discretion to strike section 12022.53’s enhancements. (§ 12022.53, 

subd. (h), as amended by Stats. 2017, ch. 682, § 2.) 

In 2019, Solorio petitioned the trial court for a hearing under Franklin and 

to strike his firearm sentence enhancement under Sen. Bill No. 620. As noted, the court 

denied the petition.

II

DISCUSSION

Following the Wende guidelines, we have reviewed counsel’s brief and the 

entire appellate record. Per 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) is Solorio “entitled 

to a youth offender parole hearing” or “a Franklin hearing to make a record of youthrelated mitigating factors?”
4

It is clear Solorio is not entitled to any benefit under Sen. Bill 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, 305 [“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 Solorio’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, the judgment in this case became 

final the same year (U.S. Supreme Ct. Rules, rule 13(1)), seven years before Sen. Bill 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 

raise an arguable issue in any event because a provision in Sen. Bill 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 years old when the crime was committed is explicitly ineligible 

for youth offender parole release under section 3051, subdivision (h).

In sum, our review of the entire record, including the potential issues

identified by counsel, does not show the existence of an arguable issue. (Wende, supra, 

25 Cal.3d at pp. 442-443.) Consequently, we affirm. (Id. at p. 443.)
5

III

DISPOSITION

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.