Can a defendant appeal his conviction for assault with a deadly weapon?
California, United States of America
The following excerpt is from People v. Nodarse, E064235 (Cal. App. 2015):
Here, the record of conviction supports defendant's conviction for assault with a deadly weapon as charged in the second amended information. As such, defendant is "currently serving" a sentence for an offense that is ineligible under Proposition 47. Defendant was ineligible for resentencing as a matter of law. Moreover, the time for challenging the basis for his conviction on appeal has passed. (See Lackawanna County Dist. Attorney v. Coss (2001) 532 U.S. 394, 403-404 [once a conviction is no longer open to direct or collateral attack because a defendant either failed to appeal or did so
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unsuccessfully, the conviction is conclusively valid for sentencing purposes].) We therefore reject defendant's claims of error.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
The order denying defendant's Proposition 47 petition for recall and resentencing is affirmed.
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