Opinion
E082380
02-23-2024
THE PEOPLE, Plaintiff and Respondent, v. HERACLIO GARCIA, Defendant and Appellant.
Lara Gressley, 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NOT TO BE PUBLISHED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. RIF1701104. John D. Molloy, Judge. Dismissed.
Lara Gressley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKINSTER J.
On September 18, 2019, following an accident in which his cousin was killed, defendant and appellant Heraclio Garcia pled guilty to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a), added count 5) and admitted the attached allegation that he caused bodily injury or death to more than one person (Veh. Code, § 23558). Defendant also pled guilty to attempted murder (Pen. Code, §§ 664, 187, added count 6), admitting he caused great bodily injury to the victim (Pen. Code, § 12022.7), and he further admitted a misdemeanor probation violation in Riverside County Superior Court case No. RIM1201219. Before his plea, defendant faced a murder charge for his cousin's death and three other counts arising from the accident. (Pen. Code, § 187; Veh. Code, §§ 23153, subds. (a) &(b), 14601.2, subd. (b).)
Defendant's negotiated sentence under the plea agreement was 14 years four months in prison, which the trial court imposed at sentencing. As to credit for time served (CTS), the plea form expressly stated, accompanied by defendant's initials: "WAIVE ALL CTS per Negotiated DISPO w/ People." At his sentencing hearing, defendant confirmed in multiple colloquies with the trial court that he understood and agreed to this and other terms of his plea.
On August 16, 2023, defendant filed a motion in the superior court "to have the Court [a]pply . . . presentence credits" totaling 910 days, which the sentencing court denied.
Defendant appealed, and this court appointed counsel to represent defendant. Counsel subsequently filed a declaration stating her record review and legal research disclosed no arguable issues to advance on appeal, including after consultation with Appellate Defenders, Inc. Counsel filed a brief requesting that we independently review the record under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel suggested the following two issues for our potential review to confirm the absence of arguable issues: (1) whether defendant's waiver of presentence credits was knowing and intelligent, and (2) whether the trial court "took a proper waiver of presentence credits from appellant." This court advised defendant of his opportunity to file "any supplemental brief" and that failure to do so could result in his appeal being deemed abandoned. Defendant did not file any response to the notice.
Our high court recently confirmed that independent appellate court review under Wende and Anders applies to a defendant's first appeal as a matter of right from a criminal conviction, but not necessarily to ensuing appeals from denial of a defendant's postconviction motion or motions. (People v. Delgadillo (2022) 14 Cal.5th 216, 224226.) If the defendant does not file a supplemental brief, the appellate court "may dismiss the appeal as abandoned." (Id. at p. 232.) We conclude that is the proper result here.
DISPOSITION
The appeal is dismissed.
I concur: RAPHAEL J.
RAMIREZ, P. J., Dissenting.
I respectfully dissent. Our Supreme Court has afforded reviewing courts discretion with respect to the disposition of postconviction appeals in which appointed appellate counsel has filed a no-issues brief and defendant did not file a supplemental brief. (People v. Delgadillo (2022) 14 Cal.5th 216, 232.) I would exercise that discretion to conduct an independent review of the record.