Opinion
B305379
09-21-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS DELGADO, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA416608) APPEAL from a judgment of the Superior Court of Los Angeles County, Upinder S. Kalra, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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This is the fourth appeal brought by defendant Juan Carlos Delgado. In defendant's third appeal, we remanded for the trial court to exercise its discretion whether to strike defendant's prior serious felony enhancement. The trial court struck the enhancement and otherwise left defendant's sentence intact.
In this fourth appeal, defendant's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), identifying no issues and requesting that this court review the record and determine whether any arguable issue exists on appeal. Defendant filed a supplemental brief and, with our permission, a second supplemental brief. We have reviewed the record, conclude the record reveals no arguable issue on appeal, and thus affirm.
FACTUAL BACKGROUND
The following facts are taken from our opinion in defendant's first appeal, People v. Delgado (Aug. 31, 2016, B261252) [nonpub. opn.] (Delgado I).
On September 23, 2013, defendant and another man approached a parked car in which Elias Paxtor and a woman were sitting. Defendant put a gun to Paxtor's head and asked him if he belonged to a gang. Paxtor said he did not. Defendant demanded everything in Paxtor's wallet. Paxtor told defendant he did not have any money. Defendant and the other man left, riding away on bicycles.
Paxtor followed defendant in his car. He saw defendant apparently commit a similar assault on another man. After defendant left, Paxtor spoke with the man, who said defendant had demanded money.
Paxtor then saw defendant point a gun at someone else in front of a Laundromat, which defendant subsequently entered. The police arrived, arrested defendant, and found a loaded handgun hidden in a laundry basket.
The prosecution introduced evidence that defendant was a member of the Playboys gang, including testimony regarding defendant's statements to police officers and his tattoos. The prosecution's gang expert opined that defendant had committed the assault for the benefit of the gang.
PROCEDURAL BACKGROUND
1. Conviction and prior appeals
Following a jury trial, defendant was convicted of one count of assault with a semiautomatic firearm and one count of felon in possession of a firearm. The jury found true the allegations in support of gang and firearm enhancements, and the trial court found true that defendant had a prior serious felony conviction qualifying as a strike within the meaning of the "Three Strikes" law. The trial court sentenced defendant to 26 years 4 months in state prison, which included doubling the three-year low term for the assault conviction based on the prior strike, and a five-year enhancement for the prior serious felony under Penal Code section 667, subdivision (a)(1).
Undesignated statutory citations are to the Penal Code.
In defendant's first appeal we reversed the gang enhancement for lack of sufficient evidence and remanded for resentencing, but otherwise affirmed the judgment. (Delgado I, supra, B261252.) The trial court resentenced defendant to 20 years, now choosing to impose the middle rather than the low term on the assault conviction, again doubling it because of the prior strike. The new sentence also included the five-year enhancement under section 667, subdivision (a)(1).
Defendant appealed from the judgment following his resentencing hearing. In that second appeal, we remanded for the trial court to exercise its discretion whether to strike the firearm enhancement. (People v. Delgado (Feb. 27, 2018, B280909 [nonpub. opn.].) The trial court subsequently struck the firearm enhancement, reducing the sentence by three years, but did not otherwise modify the sentence. (People v. Delgado (Aug. 13, 2019, B293045) [nonpub. opn.] (Delgado III).)
Defendant again appealed, asking, inter alia, for remand for the trial court to exercise its discretion whether to strike the five-year enhancement under section 667, subdivision (a)(1). We remanded for that purpose, otherwise affirming the judgment. (Delgado III, supra, B293045.)
2. Proceedings underlying the instant appeal
On remand, defendant moved under People v. Marsden (1970) 2 Cal.3d 118 to discharge his appointed counsel and substitute another attorney. The trial court denied the motion. Defendant then requested under Faretta v. California (1975) 422 U.S. 806 that he be allowed to represent himself. The trial court granted the request.
Defendant filed two motions seeking documents pertaining to the prior felony conviction upon which his section 667, subdivision (a)(1) enhancement was based. The trial court denied the motions, concluding that defendant had no basis to collaterally attack the prior conviction.
Defendant then filed a motion to strike the five-year section 667, subdivision (a)(1) enhancement. The trial court granted the motion, reducing defendant's sentence to a total of 12 years.
Defendant timely appealed.
DISCUSSION
Defendant's appointed appellate counsel filed a Wende brief raising no issues on appeal and requesting that we independently review the record. (Wende, supra, 25 Cal.3d 436.) We advised defendant of the opportunity to file a supplemental brief, which he did. With our permission, he filed a second supplemental brief as well.
Defendant argues that because the trial court struck the enhancement for his prior serious felony, there is no longer a basis to double the sentence on his assault conviction under the Three Strikes law. This is incorrect; the fact that the trial court struck the five-year penalty for the prior conviction does not alter the trial court's true finding as to that prior conviction. Defendant challenges the true finding, but that finding was affirmed in defendant's first appeal, and he may not attack it now.
Other issues raised by defendant similarly are untimely. He argues that at the time of his conviction the trial court erroneously designated one of his offenses as violent and relied on the allegation of firearm use to impose improper enhancements. He argues the trial court on remand from defendant's first appeal improperly increased the sentence on the assault count rather than merely striking the gang enhancement. Again, these aspects of the judgment were affirmed in earlier appeals and cannot be attacked now.
Defendant's second supplemental brief concerns a motion he filed with the trial court seeking to be moved to different housing in jail, a motion the trial court denied, finding defendant had not followed the proper procedures for making the request. In the motion, defendant protested that jail personnel were not granting him sufficient access to the law library in the jail. He also complained of earlier incidents in which jail personnel gave defendant "a hard time."
To the extent defendant is claiming he has been denied a fair opportunity to defend himself, we note that defendant received a favorable ruling from the trial court resulting in a five-year reduction in his sentence. Thus, whatever difficulties he may have encountered in defending his case did not prejudice him.
We have reviewed the record and find no arguable issue. Appointed counsel has fully complied with counsel's responsibilities and no arguable issue exists. (People v. Kelly (2006) 40 Cal.4th 106, 126; Wende, supra, 25 Cal.3d at pp. 441-442.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J. We concur:
CHANEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------