People v. Bonilla CA2/2 ( 2023 )

Filed 2/7/23 P. v. Bonilla CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B321511
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA399015)
v.
MANUEL BONILLA,
Defendant and Appellant.
THE COURT:
In 2013, a jury found defendant and appellant Manuel
Bonilla guilty of first degree murder (Pen. Code, § 187,
subd. (a)),1 possession for sale of methamphetamine (Health &
Saf. Code, § 11378), possession for sale of cocaine (Health & Saf.
Code, § 11351), possession for sale of cocaine base (Health & Saf.
Code, § 11351.5), and two counts of possession of a firearm by a
1 All further statutory references are to the Penal Code
unless otherwise indicated.
felon (§ 29800, subd. (a)(1)). As to the murder, the jury found
true, among other allegations, that defendant personally used
and discharged a firearm causing great bodily injury and death to
the victim within the meaning of section 12022.53,
subdivision (d). The trial court sentenced defendant to a total
term of 57 years to life in state prison.
On direct appeal, we instructed the trial court to amend the
abstract of judgment to reflect an additional day of presentence
custody credit; we otherwise affirmed the judgment. (People v.
Bonilla (Dec. 2, 2014, B249622) [nonpub. opn.], at p. 15.)
On April 29, 2021, defendant, in propria persona, filed a
petition for resentencing under section 1172.6 (former
§ 1170.95).2 On May 7, 2021, the trial court summarily denied
the petition on the ground that defendant had failed to establish
a prima facie case for relief.
On February 28, 2022, defendant filed a second
section 1172.6 petition. This time, the trial court found that the
petition met “the basic requirements of the statute.” Accordingly,
the court appointed counsel to represent defendant. The People
opposed the petition.
On June 9, 2022, the trial court denied defendant’s second
section 1172.6 petition. The court again found that defendant
had failed to establish a prima facie case for relief. The court
explained that the jury had been instructed on the theories that
defendant shot the victim and that he was an aider and abettor to
the shooting; the jury had not been instructed on felony murder
or the doctrine of natural and probable consequences. The jury
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
For simplicity, we refer to the section by its new numbering.
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had not found defendant guilty based on a theory of vicarious
liability; rather it found that “defendant was the actual shooter
and that he personally used and discharged the firearm.”
Defendant timely appealed from the ruling.
Counsel was appointed to represent defendant in
connection with this appeal. After reviewing the record, counsel
filed a brief raising no issues and asking this court to
independently review the record pursuant to People v. Wende
(1979) 25 Cal.3d 436 (Wende). Counsel stated that she had
advised defendant that he could file a supplemental brief and had
sent him the transcripts and a copy of the opening brief.
On November 17, 2022, we sent a notice to defendant
stating the following: “Counsel appointed to represent appellant
on appeal has filed an appellant’s opening brief that raises no
issues. ([Wende, supra, 25 Cal.3d at p.] 442.) [¶] Appointed
counsel is directed to send the record of this appeal and a copy of
appellant’s opening brief to appellant immediately. Within
30 days of the date of this notice, appellant may submit a
supplemental brief or letter stating any grounds for an appeal, or
contentions, or arguments which appellant wishes this court to
consider.”
To date, defendant has not filed a supplemental brief.
An appeal from the denial of a section 1172.6 petition “does
not implicate a constitutional right to counsel[.]” (People v.
Delgadillo (2022) 14 Cal.5th 216, 222 (Delgadillo).) Accordingly,
when counsel finds no arguable issues in such an appeal, we are
not required to conduct an independent review of the record as
set out in Wende, supra, 25 Cal.3d 436. (Delgadillo, supra, at
p. 222.) Rather, the California Supreme Court recently
prescribed the following procedures:
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“When appointed counsel finds no arguable issues to be
pursued on appeal: (1) counsel should file a brief informing the
court of that determination, including a concise recitation of the
facts bearing on the denial of the petition; and (2) the court
should send, with a copy of counsel’s brief, notice to the
defendant, informing the defendant of the right to file a
supplemental letter or brief and that if no letter or brief is filed
within 30 days, the court may dismiss the matter. [Citations.]
“If the defendant subsequently files a supplemental brief or
letter, the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion.
The filing of a supplemental brief or letter does not compel an
independent review of the entire record to identify unraised
issues. [Citations.] If the defendant does not file a supplemental
brief or letter, the Court of Appeal may dismiss the appeal as
abandoned. [Citation.] If the appeal is dismissed as abandoned,
the Court of Appeal does not need to write an opinion but should
notify the defendant when it dismisses the matter. [Citation.]
While it is wholly within the court’s discretion, the Court of
Appeal is not barred from conducting its own independent review
of the record in any individual section 1172.6 appeal.
[Citations.]” (Delgadillo, supra, 14 Cal.5th at pp. 231–232.)
Here, we provided notice to defendant before Delgadillo
was issued. Although our notice informed defendant of his right
to file a supplemental brief, it did not inform him that his appeal
could be dismissed if a supplemental brief was not filed.
Additionally, the notice “affirmatively cited Wende after
[defendant]’s counsel had filed a brief pursuant to Wende.”
(Delgadillo, supra, 14 Cal.5th at p. 233.) Thus, “the notice in this
case was suboptimal.” (Ibid.)
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As our Supreme Court did in Delgadillo under the same
circumstances, we have undertaken an independent review of the
entire record on appeal “in the interest of judicial economy[.]”
(Delgadillo, supra, 14 Cal.5th at p. 222; see also id. at p. 233,
fn. 6.) Based on this independent review, we are satisfied that
defendant’s appellate counsel has fully complied with her
responsibilities and that no arguable issues exist.
DISPOSITION
The order denying defendant’s second section 1172.6
petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.
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