Opinion
F085334
06-12-2023
THE PEOPLE, Plaintiff and Respondent, v. JERRY SHUE, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Merced Super. Ct. No. SUF25245. Steven K. Slocum, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT[*]
In 2001, appellant and defendant Jerry Shue (appellant) was convicted, after a jury trial, of first degree premeditated murder (Pen. Code, § 187, subd. (a)), with the personal use of a firearm (§ 12022.5, subd. (a)(1)), and that he personally and intentionally discharged a firearm and inflicted great bodily injury (§§ 12022.53, subd. (d); 12022.7); and other felonies. On direct appeal, this court affirmed the convictions, corrected sentencing errors, and appellant's sentence was amended to 10 years plus 80 years to life. (People v. Shue (May 5, 2003, F039610) [nonpub. opn.].)
All further statutory references are to the Penal Code unless otherwise stated.
The People submitted this court's opinion in appellant's direct appeal as an exhibit in support of its opposition to his petition for resentencing.
In 2022, appellant filed a petition for resentencing of his first degree murder conviction pursuant to section 1172.6. The People filed opposition, supported by the jury instructions and verdict forms and requested the court take judicial notice of the record of appellant's jury trial.
Appellant filed his petition under former section 1170.95, which was amended effective January 1, 2022, and then renumbered as section 1172.6, effective June 30, 2022, without further substantive changes. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.) As such, we refer to the subject statute by its current number throughout this opinion.
The superior court appointed counsel, conducted a hearing, and denied the petition, finding appellant failed to state a prima facie case because he was not convicted on any theory of imputed malice.
On appeal, appellant's counsel filed a brief with this court pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record.
On March 24, 2023, this court sent an order to appellant stating his appellate counsel had filed a brief under Wende that indicated no arguable issues had been identified for appeal; previously, when an appellant filed an appeal from the denial of a section 1172.6 petition, and counsel filed a Wende brief, this court performed an independent review of the record to determine whether any error occurred; the California Supreme Court determined in Delgadillo that independent Wende review is not required for appeals from the denial of section 1172.6 petitions; in accordance with the procedures set forth in Delgadillo, appellant had 30 days in which to file a supplemental brief or letter raising any arguable issues he wanted this court to consider; and if we did not receive a letter or brief within that 30-day period, this court may dismiss the appeal as abandoned.
Since more than 30 days have elapsed, and we have received no communication from appellant, we consider his appeal abandoned and order dismissal. (Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The appeal is dismissed.
[*] Before Hill, P. J., Smith, J. and Snauffer, J.