People v. Gopal CA5 ( 2022 )

Filed 12/23/22 P. v. Gopal CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084288
Plaintiff and Respondent,
(Super. Ct. No. 1060116)
v.
ARVIND VYAS GOPAL, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Shawn D.
Bessey, Judge.
Patrick J. Hoynoski, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P. J., Franson, J. and Meehan, J.
INTRODUCTION
In 2003, a jury convicted appellant Arvind Vyas Gopal of the following four
felonies:
(1) Attempted murder (Pen. Code, §§ 664/187, subd. (a);1 count I);
(2) Mayhem (§ 205; count II);
(3) Assault with a deadly weapon (§ 245, subd. (a)(1); count III); and
(4) Making a criminal threat (§ 422; count IV).
Regarding the conviction for attempted murder, the jury found true that appellant
acted intentionally, deliberately, and with premeditation. In other counts, the jury found
true that he personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)),
and he personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)).
In 2004, appellant was sentenced to prison for life with the possibility of parole for
the attempted murder in count 1, which was further enhanced by four years, along with a
consecutive determinate sentence of one year.
In 2022, appellant filed a form petition in the superior court requesting
resentencing pursuant to section 1170.95.2 Appellant claimed in his petition that he
could no longer be convicted of attempted murder because of changes to sections 188 and
189 effective January 1, 2019.3 Appellant also requested the appointment of counsel.
1 All future statutory references are to the Penal Code unless otherwise noted.
2 Effective June 30, 2022, section 1170.95 was renumbered as section 1172.6, with
no change in its text. (Stats. 2022, ch. 58, § 10.)
3 In relevant part, section 188 requires a principal in a crime to act with malice
aforethought to be guilty of murder, and malice may not be imputed to a person based
solely on his participation in a crime. (§ 188, subd. (a)(1)-(3).) Under section 189, a
person is liable for first degree murder only if (1) he was the actual killer; or (2) he acted
with an intent to kill in aiding and abetting the actual killer; or (3) he was a “major
participant in the underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(1)-(3).)
2.
On April 11, 2022, the superior court stated in a written ruling that it could not
“reconcile” appellant’s petition against the record. Instead, the court found that appellant
had acted with premeditation and deliberation when he attempted to kill the victim in this
case. The court ruled it would not appoint counsel for appellant, and appellant was not
eligible for relief. The court denied the petition for resentencing.
On appeal, appellant’s current counsel filed a Wende4 brief which summarizes the
facts with citations to the record, raises no issues, and asks this court to independently
review the record. After reviewing the record, we affirm the lower court’s denial of the
petition for resentencing.
DISCUSSION
In relevant part, a person convicted of attempted murder may file a petition with
the sentencing court to have that conviction vacated if (1) the prosecution could have
proceeded under the natural and probable consequences doctrine; (2) the petitioner was
convicted of attempted murder; and (3) the petitioner could not presently be convicted of
attempted murder because of changes to the law. (§ 1172.6, subd. (a)(1)-(3).) A
petitioner may request the appointment of counsel. (Id. at subd. (b)(1)(C).)
If the petitioner makes a prima facie showing that he is entitled to relief, the court
shall issue an order to show cause. (§ 1172.6, subd. (c).) If the court declines to make an
order to show cause, it shall provide a statement fully setting forth its reasons for doing
so. (Ibid.) If the court issues the order to show cause and conducts a hearing, the
prosecution has the burden to prove beyond a reasonable doubt that the petitioner is
guilty of murder or attempted murder under the amended versions of section 188 or 189.
(§ 1172.6, subd. (d)(3).)
4 People v. Wende (1979) 25 Cal.3d 436 (Wende). A Wende brief is one that sets
forth a summary of proceedings and facts but raises no specific issues. Under those
circumstances, an appellate court must conduct an independent review of the entire
appellate record. (Id. at pp. 441–442.)
3.
On December 19, 2022, our Supreme Court analyzed whether the Wende process
applies to a superior court’s order denying a petition for postconviction relief under
former section 1170.95. The high court held that Wende is not applicable in this
situation. (People v. Delgadillo (Dec. 19, 2022, S266305) ___Cal.5th___ [2022 Cal.
Lexis 7654, at *2] (Delgadillo).) The high court instructed that, instead of using the
process outlined in Wende, an appellate court should do the following when counsel
submits notice that such an appeal lacks arguable merit. First, the Court of Appeal
should provide notice to the defendant that counsel was unable to find any arguable
issues. (Delgadillo, supra, ___ Cal.5th ___ [2022 Cal. Lexis 7654, at *2].) The
defendant should then be permitted to file a supplemental brief or letter raising any
argument the defendant wishes the court to consider. (Delgadillo, supra, __ Cal.5th __
[2022 Cal. Lexis 7654, at *3].) Finally, if no such supplemental brief or letter is timely
filed, the court may dismiss the appeal as abandoned. (Ibid.)
In Delgadillo, the Court of Appeal had provided notice to the defendant regarding
his right to file a supplemental brief, but the Supreme Court concluded that the notice had
been “suboptimal.” (Delgadillo, supra, __ Cal.5th __ [2022 Cal. Lexis 7654, at *3].)
The notice was problematic because it had indicated that the Wende procedures would
apply when they did not, and the notice had not informed the defendant that the appeal
would be dismissed as abandoned if no supplemental brief or letter was filed. (Ibid.)
However, to promote judicial economy, the high court conducted its own independent
review of the record. (Ibid.). After conducting its review, the Delgadillo court
determined that the defendant was not entitled to relief. (Ibid.)
Here, after appellant’s counsel filed the Wende brief, this court informed appellant
that he could file a letter in this matter stating any grounds that he wanted this court to
consider. Appellant, however, did not file anything with this court. Based on Delgadillo,
the notice that this court sent to appellant must be deemed “suboptimal” because
appellant was not informed that his appeal would be dismissed as abandoned if no
4.
supplemental brief or letter was filed. Accordingly, even though Wende is inapplicable in
this situation, we will nevertheless conduct our own independent review of the record.
(See Delgadillo, supra, __ Cal.5th __ [2022 Cal. Lexis 7654, at *3].)
We have carefully reviewed the entire record, and we conclude that appellant is
not entitled to relief. The trial court provided the required statement setting forth its
reasons for denying the petition for resentencing. (See § 1172.6, subd. (c).) The superior
court’s ruling is correct. The jury found that appellant committed the attempted murder
intentionally, deliberately, and with premeditation. He personally used a knife, and he
inflicted great bodily injury. As such, the record overwhelmingly establishes that
appellant acted with malice aforethought. Thus, he is statutorily ineligible for
resentencing of his attempted murder conviction, and the trial court properly denied the
petition. (See § 187, subd. (a) [“malice aforethought” is required for any murder]; see
also Delgadillo, supra, ___Cal.5th___ [2022 Cal. Lexis 7654, at *24–25].) Accordingly,
we affirm the superior court’s ruling.
DISPOSITION
We affirm the superior court’s order dated April 11, 2022, denying the petition for
resentencing.
5.