Filed 10/31/17 P. v. Tryals CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL DWAYNE TRYALS,

Defendant and Appellant.
D072125



(Super. Ct. No. SCD122199)

APPEAL from an order of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.

Michael Dwayne Tryals, in pro. per.; and Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Michael Dwayne Tryals appeals from a postjudgment order denying his petition to reduce his sentence pursuant to Penal Code section 1170.18 (also referred to as Proposition 47).
Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). In response to our invitation, Tryals has filed a supplemental brief. After having considered the briefing and having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996, an information was filed in San Diego County Superior Court charging Tryals with the following crimes: possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 1); possession of marijuana for sale (id., § 11359) (count 2); possession of methamphetamine (id., § 11377, subd. (a)) (count 3); possession of cocaine base (id., § 11350, subd. (a)) (count 4); and obliterating the identification of a firearm (Pen. Code, former § 12090) (count 5). As to counts 1 through 4, it was alleged that Tryals was armed with a pistol (id., § 12022, subd. (a)(1)). In addition, the information alleged three prison priors (id., § 667.5, subd. (b)), and one prior strike (id., §§ 667, subds. (b)-(i), 1170.12).
On May 9, 1997, Tryals pled guilty to possession of methamphetamine for sale as alleged in count 1 (Health & Saf. Code, § 11378), and he admitted one prison prior and the prior strike. In exchange for his plea of guilty, the People agreed to dismiss the balance of the charges and allegations and agreed that Tryals would receive a stipulated term of five years in prison. The trial court imposed a prison term of five years and issued an abstract of judgment. According to a minute order in the record, Tryals was released on bond pending appeal.
Although the record is not clear, according to Tryals and his counsel, Tryals appealed from the judgment, and his conviction was affirmed. Tryals's conviction was affirmed in 1999, but Tryals apparently did not begin serving his prison term until 2011 when he appeared in the trial court and another abstract of judgment was entered, directing Tryals to serve the five-year sentence in this case concurrently with a federal prison term that he was also serving.
On March 2, 2017, representing himself in propria persona, Tryals filed in the trial court a document he titled "A Petition for Recall of Felony Sentence and Resentencing Under California Criminal Sentences Reduced Penalties Reform Act of 2014." In the petition, Tryals argued that his sentence should be reduced to a misdemeanor sentence pursuant to Penal Code section 1170.18. In the body of the petition, Tryals complained that he was subject to an improper search leading to his arrest and conviction, and that the "paperwork" filed in connection with the crime to which he pled guilty erroneously mentioned "multiple grams of methamphetamine when the amount was a f[r]action of . . . one gram."
On March 3, 2017, the trial court denied Tryals's petition. The trial court's order stated, "The petition seeks relief on ineligible conviction -- [Health and Safety Code section] 11378."
In an attempt to appeal the trial court's order denying his petition, Tryals sent a document to this court titled "Petition for the Denial of for [sic] Reduction of Felony to Misdemeanor." On April 18, 2017, a deputy clerk of this court sent a notice to Tryals informing him that he should first file a notice of appeal in the trial court and stating that a copy of the document that he attempted to file with this court would be sent to Appellate Defenders, Inc. On April 24, 2017, Appellate Defenders, Inc. filed a notice of appeal on behalf of Tryals from the trial court's order of March 3, 2017.
II.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436.
Counsel has identified the following issue that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744): whether the trial court erred by finding the conviction ineligible for relief under Penal Code section 1170.18.
After we received counsel's brief, we gave Tryals an opportunity to file a supplemental brief. Tryals responded by filing a supplemental brief in which he stated that he was requesting that his counsel look into his allegation that the prosecutor used "false evidence" in connection with his 1997 conviction. Although Tryals is not clear in his supplemental brief about what false evidence he believes was presented by the prosecutor in connection with his 2007 conviction, based on Tryals's statement in the filing he sent to this court prior to filing his notice of appeal, he appears to be referring, as he did in that document, to the prosecutor allegedly "allowing false testimony by the police" during a suppression hearing, which he claims led him to decide to plead guilty.
Although we understand Tryals's position that he believes prosecutorial misconduct was committed in connection with his 2007 conviction and that his suppression motion was therefore wrongly decided, for the purposes of this appeal from the trial court's denial of Tryals's petition to reduce his sentence pursuant to Penal Code section 1170.18, the assertion of prosecutorial misconduct is not relevant. Tryals pled guilty to a violation of Health and Safety Code section 11378, which is not an offense eligible for reduction to a misdemeanor under Penal Code section 1170.18. Thus, prosecutorial misconduct is not properly raised as a basis for the relief sought by Tryals under Penal Code section 1170.18.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issue suggested by counsel and the issue raised by Tryals in his supplemental brief, has disclosed no reasonably arguable appellate issue. Tryals has been adequately represented by counsel on this appeal.
DISPOSITION
The order denying the petition for resentencing is affirmed.



IRION, J.

WE CONCUR:




BENKE, Acting P. J.




HALLER, J.