People v. Lopez CA3 ( 2023 )

Filed 12/11/23 P. v. Lopez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sutter)
----
THE PEOPLE, C098628
Plaintiff and Respondent, (Super. Ct. No.
CRF080001476)
v.
SALVADOR LOPEZ,
Defendant and Appellant.
Defendant Salvador Lopez appeals the trial court’s denial of his petition for
resentencing under Penal Code section 1170, subdivision (d).1 Appointed counsel for
defendant filed a brief raising no arguable issues under People v. Wende (1979) 25 Cal.3d
436 and asking this court to conduct an independent review of the record to determine
whether there are any arguable issues on appeal. After independently examining the
record, we will affirm the judgment.
1 Undesignated statutory references are to the Penal Code.
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I. BACKGROUND
The facts of the offenses are recounted in our prior opinion from defendant’s
direct appeal. (See People v. Lopez (Feb. 18, 2015, C060565) [nonpub. opn.].) As
relevant here, in 2008, a jury found defendant guilty of premeditated attempted murder
(§§ 187, 664) and participation in a criminal street gang (§ 186.22, subd. (a)). As to the
attempted murder conviction, the jury found that defendant intentionally and personally
discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and that he
committed the offense for the benefit of a criminal gang (§ 186.22, subd. (b)(1)(C)). As
to the participation in a street gang conviction, the jury found that defendant personally
used a firearm (§ 12022.5, subd. (a)). After finding the information had not properly
alleged premeditated attempted murder, the trial court sentenced defendant to the upper
term of nine years for attempted murder and a consecutive 25 years to life for the section
12022.53, subdivision (d) enhancement. The court stayed punishment for the street gang
conviction and the section 12022.5, subdivision (a) enhancement. The court struck the
street gang enhancement in the interest of justice.
In 2023, defendant filed a petition seeking relief under section 1170, subdivision
(d)(1) and People v. Heard (2022) 83 Cal.App.5th 608. The trial court denied the
petition because defendant “was not sentenced to life without parole or the functional
equivalent” and “ha[d] not met the other statutory requirements for relief.” Defendant
filed a timely notice of appeal.
II. DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and requesting that this court review the record to
determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25
Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30
days of the date of filing of the opening brief. More than 30 days elapsed, and we
received no communication from defendant. Defendant was not notified that his failure
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to file a supplemental brief may result in dismissal of the appeal. Accordingly, although
we are not required to independently review the record in these circumstances (see, e.g.,
People v. Delgadillo (2022) 14 Cal.5th 216, 226), in the interest of justice, we have done
so. We find no arguable errors that are favorable to defendant.
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
MAURO, Acting P. J.
/S/
MESIWALA, J.
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