People v. Prieto CA2/1 ( 2020 )

Filed 11/25/20 P. v. Prieto CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B301644
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. TA106590)
v.
JOSE ALFREDO PRIETO,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Curtis B. Rappe, Judge. Appeal dismissed.
Benjamin Owens, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
Jose Alfredo Prieto appeals from an order denying his
petition for resentencing under Penal Code section 1170.95.1 For
the reasons explained below, we dismiss the appeal.
A jury convicted Prieto, his brother, and their friend and
fellow gang member of robbery, three counts of murder, and a
single count of attempted murder. As to the murder counts, the
jury found true an allegation that the murders were committed
during the commission of a robbery, that Prieto’s brother
personally discharged a handgun that caused the death of all
three victims, and that a principal personally and intentionally
discharged a firearm that caused the death of all three victims.
As to the robbery and attempted murder counts, the jury found
true an allegation that Prieto personally used a handgun. The
jury also found true a gang enhancement allegation. The trial
court sentenced Prieto to three consecutive terms of life without
the possibility of parole for each of the murders, plus 25 years to
life on each of those terms for the firearm enhancement. For the
robbery, Prieto was sentenced to three years, plus 10 years for
the gang enhancement. On direct appeal, we affirmed Prieto’s
conviction, but ordered the trial court to modify the judgment to
reflect Prieto’s joint and several liability for a restitution
component, to issue a corrected abstract of judgment, and to
forward a certified copy of the modified abstract of judgment to
the Department of Corrections and Rehabilitation. (People v.
Prieto (Nov. 30, 2012, B233309) [nonpub. opn.].)
On January 30, 2019, Prieto filed a petition for
resentencing under section 1170.95. After reviewing the People’s
opposition to the petition and Prieto’s reply, the trial court issued
1 Further statutory references are to the Penal Code.
2
an order to show cause why it should not recall Prieto’s sentence
and resentence him. The trial court heard the order to show
cause on October 4, 2019. The trial court found beyond a
reasonable doubt that Prieto was a major participant in the three
murders for which he was convicted and that he acted with
reckless indifference to human life. “[T]he prosecution has shown
beyond a reasonable doubt,” the trial court said, “that [Prieto]
could be convicted of murder of any degree under the current law
. . . .” On that basis, the trial court concluded that Prieto was not
eligible for resentencing under section 1170.95.
Prieto appealed and this court appointed counsel for him.
Prieto’s appellate counsel filed a brief raising no issues on
appeal and requesting that we independently review the record
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). He
notified Prieto that he would be filing the brief and that Prieto
could file a supplemental brief with this court.
On September 28, 2020, this court sent a letter to Prieto
informing him that he may, within 30 days, “submit a
supplemental brief [or] letter stating any grounds for an appeal,
or contentions, or arguments which appellant wishes this court to
consider.” Prieto did not file a supplemental brief.
Because Prieto’s appeal is not from his conviction, he is not
entitled to our independent review of the record pursuant to
Wende or its federal constitutional counterpart, Anders v.
California (1967) 386 U.S. 738. (See People v. Kelly (2006) 40
Cal.4th 106, 119; People v. Serrano (2012) 211 Cal.App.4th 496,
503 (Serrano); Pennsylvania v. Finley (1987) 481 U.S. 551, 559.)2
2 Under Serrano, in a criminal appeal in which Wende does
not apply, counsel who finds no arguable issues is still required to
(1) inform the court that counsel has found no arguable issues to
3
He is entitled, however, to file a supplemental brief and, if he
files such a brief, to our review of his contentions. (See Serrano,
at p. 503; cf., Ben C., supra, 40 Cal.4th at p. 544, fn. 6; Ben C., at
pp. 554-555 (dis. opn. of George, C. J.).) If no supplemental brief
is filed, we may deem the appeal to be abandoned and dismiss the
appeal. (Serrano, at pp. 503-504.)
We are satisfied that Prieto’s counsel has fully complied
with his responsibilities. (See Wende, supra, 25 Cal.3d at p. 441;
Serrano, supra, 211 Cal.App.4th at p. 503.) Because no
supplemental brief was filed, we deem the appeal abandoned.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
be pursued on appeal; (2) file a brief setting out the applicable
facts and law; (3) provide a copy of the brief to appellant; and (4)
inform the appellant of the right to file a supplemental brief.
(Serrano, supra, 211 Cal.App.4th at p. 503, citing
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544 (Ben C.).)
4