People v. Larios CA2/2 ( 2022 )

Filed 12/15/22 P. v. Larios 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B319431
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA087019)
v.
GEOVANNY GERARDO
CARDONA LARIOS,
Defendant and Appellant.
THE COURT:
Geovanny Gerardo Cardona Larios (defendant) appeals
from the order summarily denying his petition for resentencing
under Penal Code1 section 1172.6 (former section 1170.95).2
1 All further statutory references are to the Penal Code
unless otherwise indicated.
In July 2012, defendant fired several shots from a shotgun
loaded with bird shot at several people outside an apartment
building. Four people were wounded, two of whom were taken to
the hospital. Defendant was charged with four counts of
attempted murder (§§ 664/187, subd. (a)), four counts of assault
with a firearm (§ 245, subd. (a)(2)), and two counts of shooting at
an inhabited building (§ 246). It was further alleged that
defendant personally used a firearm (§ 12022.53, subds. (b), (c), &
(d)), and that he personally inflicted great bodily injuries (§
12022.7, subd. (a)).
Defendant agreed to plead nolo contendere to one count of
assault with a firearm and admit that he had personally used a
firearm, and had inflicted a great bodily injury, in exchange for a
sentence of 16 years in prison. All of the original charges were
then dismissed.
On March 3, 2022, defendant filed, in propria persona, a
petition for resentencing pursuant to section 1172.6.
On March 9, 2022, the trial court found that the petition
appeared to be facially valid because defendant alleged he was
“convicted of murder, attempted murder, or manslaughter
following a trial or [he] accepted a plea offer in lieu of a trial at
which [he] could have been convicted of murder or attempted
murder” and then “declared under penalty of perjury” that the
foregoing allegation was true. Nevertheless, the trial court
summarily denied defendant’s petition because the record
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
For the sake of simplicity, we will refer to the section by its
new numbering only.
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indicated that defendant’s conviction was for assault with a
firearm—not attempted murder.
Defendant filed a timely notice of appeal from the order.
Appointed counsel found no arguable issues and requested
this court to independently review the entire record pursuant to
the procedure set forth in People v. Wende (1979) 25 Cal.3d 436.
Where appointed counsel finds no arguable issues in an appeal
seeking postjudgment relief, the appellate court is not required to
conduct an independent review of the record for arguable issues.
(People v. Cole (2020) 52 Cal.App.5th 1023, 1039-1040, review
granted Oct. 14, 2020, S264278; see People v. Serrano (2012) 211
Cal.App.4th 496, 503.) However, if a defendant files his
own supplemental brief or letter, we review the contentions or
arguments set forth therein. If a defendant does not file
a supplemental brief, we dismiss the appeal as abandoned.
(People v. Cole, at p. 1039.) Defendant was notified of the court's
policy and did not file a supplemental brief.
And even if we were to look at the merits, the trial court’s
order is indisputably correct because section 1172.6 does not
provide relief for persons convicted of the crime of which
defendant stands convicted.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
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LUI, P. J., ASHMANN-GERST, J., HOFFSTADT, J
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