People v. Abbate CA1/3 ( 2024 )

Filed 5/23/24 P. v. Abbate CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A168207
v.
JOSEPH ANGEL ABBATE, (Contra Costa County
Super. Ct. No. 05001319516)
Defendant and Appellant.
In 2016, defendant Joseph Angel Abbate was convicted of second degree
murder. The jury found true the attendant firearm enhancement (Pen. Code,
§ 12022.53, subds. (d), (e)(1)). In a prior direct appeal after conviction (case
no. A152421), we rejected a number of defendant’s arguments but remanded
the case in light of Senate Bill No. 620 (Senate Bill 620), which allows the
trial court to consider whether to strike the firearm enhancement pursuant to
amended section 12022.53, subdivision (h). (People v. Abbate (2020) 58
Cal.App.5th 100, 114.)
In June 2022, after our remand, defendant filed a motion for
resentencing under Senate Bill 620, asking the trial court to strike the
firearm enhancement. In 2023, he also filed a motion for a new trial
pursuant to Penal Code section 745, part of the California Racial Justice Act
(CRJA), and a motion to compel discovery in connection with his CRJA claim.
(Stats. 2020, ch. 317, §§ 1, 3.5; Stats. 2022, ch. 739, §§ 1–2.)
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In June 2023, the trial court denied the motion to the strike the firearm
enhancement and declined to impose a lesser enhancement (People v. Tirado
(2022) 12 Cal.5th 688, 700). The court further denied the motions under the
CRJA without prejudice, indicating that the issue on remand was limited to
addressing the firearm enhancement, and that defendant—whose judgment
was final—could file a motion under the CRJA starting on January 1, 2024.
Defendant filed a notice of appeal. His court-appointed counsel filed a
brief raising no issues and seeking our independent review of the record
pursuant to People v. Wende (1979) 25 Cal.3d 436. The brief includes
counsel’s declaration stating that he informed defendant of his intent to file a
Wende brief, that he provided a copy of the record on appeal to defendant,
and that he apprised defendant of his right to file a supplemental brief. The
Wende brief further indicates that counsel told defendant of his right to file a
supplemental brief in this court within 30 days of the date the brief was filed.
The proof of service accompanying the brief shows it was provided to
defendant. More than two months have now elapsed, and defendant has not
filed a supplemental brief.
As indicated, this is an appeal from the trial court’s sentencing decision
after we remanded the case in an earlier appeal from the original sentence.
This appeal also follows the court’s denial without prejudice of defendant’s
two new CRJA related post-conviction motions. As this is not defendant’s
first appeal as a matter of right from a criminal conviction, it is questionable
whether the procedures set out in Wende apply here. (People v. Delgadillo
(2022) 14 Cal.5th 216, 224–226 & 231, fn. 5.) However, in the interest of
judicial economy, we have exercised our discretion to independently review
the record and have found no reasonably arguable appellate issue. (People v.
Kelly (2006) 40 Cal.4th 106, 124; Delgadillo, at pp. 231–232.)
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DISPOSITION
The orders of the trial court are affirmed.
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Rodríguez, J.
People v. Abbate (A168207)
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