Opinion
E082568
08-08-2024
THE PEOPLE, Plaintiff and Respondent, v. ESTEBAN GUADALUPE FLORES, Defendant and Appellant.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1704220 John D. Molloy, Judge. Dismissed.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Esteban Guadalupe Flores appeals from an order of the Riverside County Superior Court denying his Penal Code section 1172.6 petition for resentencing.
All further statutory references are to the Penal Code.
BACKGROUND
After a gang related shooting, a jury convicted defendant of willful, deliberate, and premeditated attempted murder (§§ 187, subd. (a), 664, subd. (a)) with a gang enhancement (§ 186.22, subd. (b)(1)) and an enhancement for personally and intentionally discharging a firearm and causing great bodily injury (§ 12022.53, subd. (d)). The trial court sentenced him to 40 years to life in state prison. Defendant appealed the judgment and we affirmed. (People v. Flores (July 30, 2020, E073047) [nonpub. opn.].)
In June 2023, defendant filed the section 1172.6 petition that is the subject of this appeal. At the ensuing status conference, the People moved to deny the petition, noting that defendant was found guilty of attempted murder and personally used and discharged a firearm with great bodily injury. The parties agreed the jury had not been instructed regarding felony murder, natural and probable consequences, or any other theory by which malice could have been imputed to defendant. The court denied the petition.
Defendant timely noticed this appeal and we appointed counsel to represent him. We also granted defendant's request to augment the record with the jury instructions given in his trial.
DISCUSSION
Appointed appellate counsel filed an opening brief that sets forth statements of the case and facts but does not present any issues for adjudication. Counsel cites our opinion in People v. Griffin (2022) 85 Cal.App.5th 329, 335-336 and requests we exercise our discretion under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) to conduct an independent review of the record. Counsel lists one issue for our consideration: Whether the court prejudicially erred in denying defendant's petition based upon the representation of the parties that the jury instructions demonstrated that he was ineligible for relief.
We notified defendant that (i) his counsel filed a brief stating no arguable issues could be found, and (ii) this court may, but is not required, to conduct an independent review of the record. (Delgadillo, supra, 14 Cal.5th 216.) We invited defendant to file within 30 days any supplemental brief deemed necessary, and cautioned that failure to timely file a supplemental brief might result in the dismissal of his appeal as abandoned. Defendant did not file a brief.
Neither defendant nor his counsel have presented an issue and upon our review of the record, we do not find any error. Accordingly, we dismiss defendant's appeal.
DISPOSITION
The appeal is dismissed.
We concur: McKINSTER J., MILLER J.