People v. Gonzalez

• Docket Number: E081559
• Decision Date: 21 December 2023
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JIMMY GONZALEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. JIMMY GONZALEZ, Defendant and Appellant.

E081559

California Court of Appeals, Fourth District, Second Division

December 21, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. FSB02844, Harold T. Wilson, Jr., Judge. Affirmed.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

OPINION

FIELDS, J.

INTRODUCTION

Defendant and appellant Jimmy Gonzalez appeals from a postjudgment order denying a petition for resentencing under Penal Code^[1] section 1170, subd. (d). Appointed appellate counsel filed an opening brief and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) We affirm.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On or about November 14, 1993, defendant and his cohort R.D. were parked at a liquor store when defendant saw the victim, with whom he had had prior issues. Defendant and R.D. exited their vehicle armed with firearms and headed toward the liquor store. R.D. stood at the front door of the store, while defendant entered the store, chased the victim, and fatally shot him. R.D. and defendant then drove away.

A jury convicted defendant of first degree murder (§ 187, subd. (a).) The jury also found true the allegation that he personally used a firearm in the commission of the offense. (§ 12022.5, subd. (a).) A trial court sentenced him to 25 years to life in state prison, with the possibility of parole, plus four years on the firearm enhancement.

On May 15, 2023, defendant filed an in propria person petition, pursuant to section 1170, subdivision (d)(1), alleging that he had been incarcerated since November 17, 1993, when he was 16 years old, and he was serving a cruel and unusual punishment sentence of life without parole. He sought relief under section 1170, subdivision (d), and People v. Heard (2022) 83 Cal.App.5th 608.^[3] On May 26, 2023, the court summarily denied the petition.

Defendant filed a timely notice of appeal of the denial of his petition.

DISCUSSION

After the notice of appeal was filed, this court appointed counsel to represent defendant. Counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, and identifying the following potential arguable issue: whether the court abused its discretion and violated defendant's equal protection rights by summarily denying his petition.

Defendant was offered an opportunity to file a personal supplemental brief, which he has not done.^[4] Although he has not filed a supplemental brief, we exercise our discretion to conduct an independent review of the record in the interest of justice.

(See Delgadillo, supra, 14 Cal.5th at p. 230 ["[I]f the appellate court wishes, it may also exercise its discretion to conduct its own independent review of the record in the interest of justice."]; id. at p. 232 ["[I]t is wholly within the court's discretion . . . [to] conduc[t] its own independent review of the record in any individual section 1172.6 appeal."] id. at p. 233, fn. 6 ["[T]he decision to conduct independent review is solely up to the discretion of the Courts of Appeal ...."].)^[5]

We have examined the entire record and found no arguable issues.

DISPOSITION

The judgment is affirmed.

We concur: MILLER Acting, P.J., CODRINGTON, J.

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^[1] All further statutory references will be to the Penal Code, unless otherwise indicated.

^[2] The brief factual background is taken from the probation officer's report.

^[3] We note that defendant did not list the complete cite for People v. Heard (2022) 83 Cal.App.5th 608. The minute order from the hearing when the court denied his motion listed the complete cite.

^[4] The notice we sent defendant cited Wende after appointed counsel had filed a brief pursuant to Wende. Defendant reasonably could have concluded from this notice that the Wende procedures would apply and that we would conduct an independent review of the record, even absent a supplemental brief. (See People v. Delgadillo (2022) 14 Cal.5th 216, 233 (Delgadillo).) The notice did not inform him that the appeal would be dismissed as abandoned if no supplemental brief was filed. Since the notice did not give him clear notice that we would dismiss the appeal as abandoned if no supplemental brief was received, the notice "was suboptimal." (Ibid.)

^[5] Although this petition did not involve section 1172.6, we discern no reason not to apply the same procedures to this appeal.

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