Opinion
E084214
12-18-2024
THE PEOPLE, Plaintiff and Respondent, v. FREDDIE GONZALES, Defendant and Appellant.
Jason L. Jones, 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NOT TO BE PUBLISHED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. CR31494. Joshlyn R. Pulliam, Judge. Dismissed.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
Defendant and appellant Freddie Gonzales appeals the trial court's postjudgment order denying his petition for resentencing of his first degree murder conviction (Pen. Code, § 187, subd. (a)) under section 1172.6. Appointed counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), requesting this court to conduct an independent review of the record. In addition, defendant has had an opportunity to file a supplemental brief with this court and has not done so. Because defendant's counsel filed a brief raising no issues and defendant was notified that failure to timely file a supplemental brief may result in the dismissal of the appeal as abandoned and was given an opportunity to file a personal supplemental brief but failed to do so, we dismiss the appeal as abandoned. (Id. at pp. 231-232.)
All future statutory references are to the Penal Code.
A summary of the background is taken from this court's nonpublished opinion in defendant's direct appeal, case No. E007493. (People v. Gonzales (May 10, 1999, E007493) [nonpub. opn.] (Gonzales I).)
In July 1988, defendant attacked an inmate at California Rehabilitation Center in Norco on behalf of the Mexican Mafia, a prison gang. Immediately prior to the killing, another inmate, who obtained the weapons, had a conversation with defendant and two other inmates in which they stated their intention to kill someone. (Gonzales I, supra, E007493.)
The victim's bunkmate saw defendant standing next to the victim's bunk and also observed the victim kicking at defendant. Defendant then left and went towards the back door. The victim jumped off his bunk and apparently went out the back door. The victim's body was found outside the back door, as well as a ten and a half inch-long sharpened piece of metal that was apparently the weapon used in the attack and a bloody razor blade. The victim's bunk was covered with blood. The victim had been stabbed 28 times. (Gonzales I, supra, E007493.)
The victim's bunkmate positively identified defendant as the attacker. Another inmate stated that he saw defendant and another man stab the victim repeatedly. (Gonzales I, supra, E007493.)
A jury convicted defendant of first degree murder (§ 187, subd. (a)), and found that he personally used a deadly weapon (§ 12022, subd. (d)) in committing the crime. Defendant admitted to having suffered a prior serious felony. Defendant was sentenced to 31 years to life. Defendant's judgment was affirmed on direct appeal. (Gonzales I, supra, E007493.)
On January 13, 2023, defendant filed a petition for resentencing pursuant to section 1172.6. The People subsequently filed a request for judicial notice of the jury instructions in the matter and all files and records from defendant's trial. The complete jury instructions were attached to the request. Counsel was appointed for defendant, and counsel filed an objection to the People's request for judicial notice.
A hearing on defendant's section 1172.6 petition was held on June 28, 2024. Defendant was present via video. The trial court took judicial notice of the jury instructions from defendant's trial. Following argument, the trial court's review of the instructions given to defendant's jury, and without factfinding, the trial court denied the section 1172.6 petition. Defendant timely appealed.
III. DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the authority of Delgadillo, supra, 14 Cal.5th 216, setting forth a statement of the case and a summary of the procedural background. Counsel considered potential issues on appeal but found no specific arguments as grounds for relief, and requests that we exercise our discretion and independently examine the appellate record for any arguable issues.
We offered defendant an opportunity to file a personal supplemental brief. We noted that if he did not do so, we could dismiss the appeal. Nevertheless, defendant has not filed one. Under these circumstances, we have no obligation to independently review the record for error. (Delgadillo, supra, 14 Cal.5th. at pp. 224-231.)
In Delgadillo, supra, 14 Cal.5th 216, the California Supreme Court held that People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 procedures do not apply in appeals from the denial of a section 1172.6 postjudgment petition. (Delgadillo, supra, at pp. 224-226.) Thus, we need not examine the entire record ourselves to look for arguable grounds for reversal. (Id. at p. 228.) Because defendant's counsel filed a brief raising no issues, and defendant was given an opportunity to file a personal supplemental brief but declined, we may dismiss the appeal as abandoned. (Id. at p. 232.) "Independent review in Wende appeals consumes substantial judicial resources," and "[t]he state . . . has an interest in an 'economical and expeditious resolution' of an appeal from a decision that is 'presumptively accurate and just.'" (Id. at p. 229.)
We, however, have discretion to conduct Wende review even when it is not required. (Delgadillo, supra, 14 Cal.5th at p. 232.) This case does not call for us to exercise our discretion to independently examine the record for arguable issues, and decline to exercise our discretion to independently examine the record. Accordingly, we dismiss the appeal as abandoned. (Ibid.)
IV. DISPOSITION
The appeal is dismissed.
We concur: RAMIREZ P. J., RAPHAEL J.