People v. Galafate CA5 ( 2023 )

Filed 6/8/23 P. v. Galafate 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F085550
Plaintiff and Respondent,
(Kern Super. Ct. No. SC036346A)
v.
ROMAN GALAFATE III, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
Heather E. Shallenberger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Poochigian, J.
In 1989, appellant and defendant Roman Galafate III (appellant) and his then-wife,
codefendant Leny Petersen Galafate, were convicted after a joint jury trial of count 1,
first degree premeditated murder, with the special circumstance that the murder was
intentional and carried out for financial gain; and count 2, conspiracy to commit murder
for financial gain. They were both sentenced to life in prison without the possibility of
parole for count 1, with a stayed term of 25 years to life for count 2. In 1991, this court
affirmed their convictions and sentences on direct appeal. (People v. Galafate, et al.
(Apr. 8, 1991, F012067) [nonpub. opn.]; People v. Galafate (June 9, 2022, F081564)
[nonpub. opn.].)
In 2019, appellant filed his first petition for resentencing under former Penal Code
section 1170.95.1 The superior court appointed counsel and received briefing and denied
the petition for failing to state a prima facie case for relief. On appeal, appellant’s
attorney filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. On June 9,
2022, this court filed the nonpublished opinion where we conducted an independent
review of the record and affirmed the trial court’s denial of appellant’s petition. (People
v. Galafate, supra, F081564.)
On January 14, 2022, while the appeal from the denial of his first petition was
pending, appellant filed a second petition for resentencing pursuant to section 1172.6.
The prosecution filed opposition, supported by this court’s recently filed opinion that
affirmed the denial of his first petition.
The superior court appointed counsel, conducted a hearing, and denied appellant’s
second petition, finding he failed to state a prima facie case for resentencing.
1 All further statutory citations are to the Penal Code unless otherwise indicated.
Appellant filed his first and second petitions under former section 1170.95. When he
filed his second petition, the statute had been amended effective January 1, 2022, and
then renumbered as section 1172.6, effective June 30, 2022, without further substantive
changes. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.) As such, we refer to
the subject statute by its current number throughout this opinion.
2.
In this appeal from the denial of his second petition, appellant’s counsel filed a
brief with this court pursuant to Wende and People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo), which summarized the facts and procedural history with citations to the
record, raised no issues, and asked this court to independently review the record.
On April 7, 2023, this court sent an order to appellant stating his appellate counsel
had filed a brief under Wende that indicated no arguable issues had been identified for
appeal; previously, when an appellant filed an appeal from the denial of a section 1172.6
petition, and counsel filed a Wende brief, this court performed an independent review of
the record to determine whether any error occurred; the California Supreme Court
determined in Delgadillo that independent Wende review is not required for appeals from
the denial of section 1172.6 petitions; in accordance with the procedures set forth in
Delgadillo, appellant had 30 days in which to file a supplemental brief or letter raising
any arguable issues he wanted this court to consider; and if we did not receive a letter or
brief within that 30-day period, this court may dismiss the appeal as abandoned.
Since more than 30 days have elapsed, and we have received no communication
from appellant, we consider his appeal abandoned and order dismissal. (Delgadillo,
supra, 14 Cal.5th at p. 232.)
DISPOSITION
The appeal is dismissed.
3.