People v. Gonzalez CA2/3 ( 2021 )

Filed 9/23/21 P. v. Gonzalez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B310161
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA125149)
v.
DOUGLAS GONZALEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Dismissed.
Jill Ishida, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
—————————
Douglas Gonzalez appeals from an order denying his
petition for writ of habeas corpus to seek resentencing under
Senate Bill No. 1393. Our independent review of the record
shows no arguable appellate issues.
A jury convicted Gonzalez of second degree robbery (Pen.
Code,1 § 211) and deadlocked on the remaining counts. Gonzalez
admitted suffering a prior serious and violent felony conviction
for robbery. (§§ 667, subds. (a)(1), (b)–(i), 1170.12, subds. (a)–(d).)
In 2013, the trial court sentenced Gonzalez to the upper term of
five years for the robbery, which was doubled to 10 years for the
prior strike. The court added an additional five years (§ 667,
subd. (a)(1)) for the prior serious felony enhancement, totaling
15 years. A different panel of this Division affirmed the
judgment in People v. Gonzalez (Dec. 17, 2014, B248086) [nonpub.
opn.]. In 2015, the California Supreme Court denied review
without comment. It does not appear that Gonzalez filed a
petition for writ of certiorari in the United States Supreme Court.
Thereafter, Senate Bill No. 1393 became effective in
January 2019, which amended sections 667 and 1385 to remove
the prohibitions on striking or dismissing a five-year prior serious
felony enhancement. (Stats. 2018, ch. 1013, §§ 1–2.)
On October 14, 2020, Gonzalez petitioned for writ of habeas
corpus, seeking resentencing under Senate Bill No. 1393 to allow
the trial court to exercise its discretion to strike the prior serious
felony enhancement. The court denied the writ on December 2,
2020. The court found that Gonzalez was not entitled to relief
because Senate Bill No. 1393 was not retroactive and, in any
event, Gonzalez was not entitled to relief because he “robbed a
1
All further statutory references are to the Penal Code.
2
vulnerable minor and had a prior conviction for attempted
robbery.”
Gonzalez timely appealed. On June 25, 2021, Gonzalez’s
court-appointed counsel filed a brief in which she declared she
was unable to find any arguable issues and asked us to follow the
procedures in People v. Serrano (2012) 211 Cal.App.4th 496.
People v. Serrano concluded that review under People v. Wende
(1979) 25 Cal.3d 436, does not apply to appeals from orders
denying postconviction relief. (Accord, People v. Cole (2020)
52 Cal.App.5th 1023, review granted Oct. 14, 2020, S264278.)2
People v. Cole held that an appeal from a postconviction order
may be dismissed if counsel has found no arguable issues and if
the defendant has not filed a supplemental brief. Where the
defendant has filed a supplemental brief, the Court of Appeal
must evaluate any arguments raised in the brief and issue a
written opinion disposing of the trial court’s order on the merits.
(Id. at p. 1040.) Gonzalez did not submit a supplemental brief.
Nevertheless, without deciding whether Cole is correct in part or
whole, we review Gonzalez’s appeal.
Senate Bill No. 1393 did not take effect until January 1,
2019. Thus, the judgment was final before Senate Bill No. 1393’s
effective date. The trial court correctly concluded that Gonzalez
was not entitled to relief. A superior court’s order denying a
criminal defendant’s petition for writ of habeas corpus is not
appealable. (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7.)
2
Our Supreme Court is currently considering what
procedures appointed counsel and the Courts of Appeal follow
when counsel determines that an appeal from an order denying
postconviction relief lacks arguable merit. (People v. Delgadillo,
review granted Feb. 17, 2021, S266305.)
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Therefore, the December 2, 2020 denial of Gonzalez’s habeas
petition is not an appealable order. Even if this were an
appealable order, we would find no error.
We have examined the entire record and are satisfied
Gonzalez’s counsel has fully complied with her responsibilities
and no arguable issues exist in the appeal before us. (People v.
Kelly (2006) 40 Cal.4th 106, 126; People v. Wende, supra,
25 Cal.3d at pp. 441–442.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
HILL, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Superior Court of Santa Barbara County,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
4