People v. Gonzales CA5 ( 2023 )

Filed 6/1/23 P. v. Gonzales 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F085132
Plaintiff and Respondent,
(Madera Super. Ct. No. MCR12382)
v.
GABRIEL GONZALES, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea,
Judge.
Jeffrey S. Kross, 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., Franson, J. and Smith, J.
In 2002, appellant and defendant Gabriel Gonzales1 (appellant) was convicted
after a jury trial of attempted premeditated murder with firearm enhancements. He was
sentenced to life in prison with the possibility of parole, plus a consecutive term of 25
years to life. In 2004, the judgment was affirmed on direct appeal.
In 2022, appellant filed a petition for resentencing pursuant to Penal Code
section 1172.6.2 The People filed opposition, supported by the jury instructions given at
appellant’s trial. The superior court appointed counsel, conducted a hearing, and denied
the petition, finding appellant failed to make a prima facie case because he was convicted
as the actual perpetrator, based upon the jury instructions and verdict.
On appeal, appellant’s counsel filed a brief with this court pursuant to People v.
Wende (1979) 25 Cal.3d 436 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 February 21, 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
1 Appellant’s name is spelled various ways throughout the record. The complaint
and information have his name spelled “Gabriel Gonzales.” We will do the same.
2 All further statutory citations are to the Penal Code unless otherwise indicated.
Appellant filed his petition under former section 1170.95, which was 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;
Stats. 2022, ch. 58 (Assem. Bill. 200), § 10, eff. June 30, 2022.) As such, we refer to the
subject statute by its current number throughout this opinion.
2.
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.