People v. Delgado CA2/5 ( 2021 )

Filed 12/8/21 P. v. Delgado CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B313091
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA389543-05)
v.
ALEX DELGADO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Norm Shapiro, Judge. Dismissed.
Larry Pizarro, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
In 2012, defendant and appellant Alex Delgado pleaded
guilty to one count of shooting at an occupied vehicle in violation
of Penal Code section 246.1 He also admitted a gang
enhancement under section 186.22, subd. (b)(1)(A) and a firearm
enhancement under section 12022.53, subdivision (b)(e)(1). The
trial court sentenced him to a total of 19 years in state prison.
On May 20, 2021, defendant filed a petition to vacate his
conviction and for resentencing pursuant to section 1170.95.
Defendant asserted the information filed against him would have
allowed the prosecutor to proceed under a theory of felony
attempted murder or attempted murder under the natural and
probable consequences theory. He pled guilty to shooting at an
occupied vehicle only to avoid trial for attempted murder under
either of those theories. The trial court summarily denied his
petition for resentencing under section 1170.95.
Defendant timely appealed, and we appointed counsel to
represent him. Counsel filed an opening brief in accordance with
People v. Wende (1979) 25 Cal.3d 436 requesting that we
independently review the entire record to determine if there are
any arguable issues. We invited defendant to submit a
supplemental brief and he has not filed one.
The appeal is dismissed as abandoned. (People v. Scott
(2020) 58 Cal.App.5th 1127, 1129-1130 review granted March 17,
2021, S266853; People v. Cole (2020) 52 Cal.App.5th 1023, 1039-
1 All further undesignated statutory references are to the
Penal Code.
2
1040, review granted October 14, 2020, S264278; People v.
Serrano (2012) 211 Cal.App.4th 496, 498.)2
___________________________________________________________
RUBIN, P. J. MOOR, J. KIM, J.
2 We observe that section 1170.95 as originally enacted did
not apply to those defendants convicted of attempted murder or
manslaughter. Recent amendments to the statute extended
section 1170.95 to those two crimes. (Sen. Bill No. 775 (2020–
2021 Reg. Sess.).) Those amendments do not provide relief for
those defendants, such as defendant here, convicted of shooting
at an occupied vehicle under section 246.
3