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Filed 2/25/21 P. v. McKissick CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION FOUR

PEOPLE OF THE STATE OF 

CALIFORNIA,

Plaintiff and Respondent,

v.

JOSEPH AARON MCKISSICK,

Defendant and Appellant. 

 A161348

 (Alameda County 

 Super. Ct. No. 17CR19342B)

On February 8, 2018, defendant Joseph Aaron McKissick 

pled no contest to one count of second degree robbery (Pen. Code, 

§ 211) with an enhancement for personal use of a firearm 

(Pen. Code1, § 12022.5, subd. (a)). Pursuant to the plea 

agreement, the trial court sentenced defendant to eight years in 

state prison.

On August 20, 2020, defendant filed a petition pursuant to 

section 1170.22, requesting recall and resentencing or dismissal 

of his conviction. The trial court denied the petition, reasoning 

that section 1170.22 relief was unavailable to defendant because 

that statute related to individuals previously convicted of 

1 All further undesignated statutory references are to the 

Penal Code.
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violating section 647f (former section 647f added by Stats. 1988,

ch. 1597, § 1 and repealed by Stats. 2017, ch. 537, § 8, effective 

January 1, 2018) (section 647f).

Appellant’s counsel filed an opening brief asking that this 

court conduct an independent review of the record for arguable 

issues—i.e., those that are not frivolous, as required by People v. 

Wende (1979) 25 Cal.3d 436. Counsel also informed appellant 

that he had the right to file a supplemental brief on her own 

behalf, but appellant declined to do so. Undertaking a 

discretionary review, we agree with appellant’s counsel that 

there are no meritorious issues and affirm the judgment. 

I. BACKGROUND

Defendant, an inmate at the California Men’s Colony in 

San Luis Obispo, filed a petition pursuant to section 1170.22 on 

August 20, 2020. He checked a box stating that he waived his 

right to be present at any hearing on the matter and he agreed 

that the petition could be heard without his appearance. 

In the handwritten portion of his section 1170.22 petition, 

defendant admitted that he had been convicted of second degree 

robbery with a firearm enhancement, and he stated that he 

sought “a modification of his current state prison sentence based 

on his rehabilitation, academic achievements and the high risk of 

being effected [sic] with Covid 19.” He did not allege that he had 

been convicted of violating section 647f. 

 The trial court denied the petition in a written order dated 

October 20, 2020. In so ruling, the court found that section 

1170.22 was inapplicable to defendant, as that statute provides 
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relief to petitioners convicted of violating section 647f “ ‘as it read 

on December 31, 2017.’ ” Defendant, the court noted, was not 

convicted of violating section 647f. The court also rejected the 

petition insofar as it raised concerns regarding the COVID-19 

pandemic; the court declined to treat the section 1170.22 petition 

as a petition for a writ of habeas corpus, explaining that a habeas 

petition challenging the conditions of an inmate’s confinement 

would be more properly filed in the county in which the inmate is 

confined. 

Defendant appealed.

II. DISCUSSION

Appellant’s counsel filed a Wende brief, requesting that we 

independently review the record to determine whether it contains 

any arguable issues for appeal. As counsel recognizes, we are not 

required to undertake an independent review of the denial of a 

post-conviction request for relief under People v. Wende, supra, 

25 Cal.3d 436, but nothing prohibits us from exercising our 

discretion to do so. (People v. Flores (2020) 54 Cal.App.5th 266, 

268.) We have chosen to conduct a discretionary Wende review. 

Having reviewed the records documenting defendant’s conviction, 

defendant’s section 1170.22 petition, and the trial court’s order, 

we find that there are no meritorious issues to be argued.

Section 1170.22, subdivision (a) provides: “A person who is 

serving a sentence as a result of a violation of Section 647f as it 

read on December 31, 2017, whether by trial or by open or 

negotiated plea, may petition for a recall or dismissal of sentence 

before the trial court that entered the judgment of conviction in 
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his or her case.” As explained in People v. Lamoureux (2019) 

42 Cal.App.5th 241, 263, section 1170.22 sets forth a “petition 

procedure to recall or dismiss sentences, vacate convictions, and 

obtain resentencing for persons serving sentences for engaging in 

prostitution with [a] prior prostitution conviction and knowledge 

of positive acquired immunodeficiency syndrome (AIDS) test 

results.” 

The trial court did not err in finding section 1170.22 relief 

unavailable to defendant, who was not convicted of violating 

section 647f. Nor did the court err in declining to treat the 

petition’s allegations with respect to COVID-19 as a petition for a 

writ of habeas corpus, as the court correctly noted that such a 

petition “may be more properly heard” by the court in the county 

in which the petitioner is confined. (Cal. Rules of Court, rule 

4.552(b)(2)(B).)

Having examined the record to ensure that appellant 

receives effective appellate review, we find no basis to reverse the 

dismissal of his petition. (Wende, supra, 25 Cal.3d 436.)

III. DISPOSITION

The judgment is affirmed. 

BROWN, J.

WE CONCUR:

POLLAK, P. J.

STREETER, J.

People v. McKissick (A161348)