People v. Melendez CA5

Filed 1/12/23 P. v. Melendez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F084723
Plaintiff and Respondent,
(Fresno Super. Ct. No. F14902295)
v.
RICHARD ARMANDO MELENDEZ, JR. OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Jeffrey Y.
Hamilton, Jr., Judge.
Kyle Gee, 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., Poochigian, J. and Smith, J.
Defendant Richard Armando Melendez, Jr. appeals the denial of his petition for
resentencing. We affirm.
BACKGROUND
On July 9, 2015, defendant was convicted of first degree murder and three counts
of attempted murder. The jury found that defendant personally and intentionally
discharged a firearm causing death in the commission of all four counts. (Pen. Code,
§ 12022.53, subd. (d).)1 The jury further found that all four counts were committed for
the benefit, at the direction of, or in association with a criminal street gang. (§ 186.22,
subd. (b)(5).) As to the murder conviction, the jury found that the murder was intentional
and perpetrated by means of discharging a firearm from a vehicle (§ 190.2, subd. (a)(21))
and was carried out to further the activities of a criminal street gang (id., at subd. (a)(22)).
Defendant was sentenced to 100 years to life in prison, plus a consecutive term of
life without the possibility of parole. In an opinion filed October 16, 2018, this court
affirmed the judgment. (People v. Melendez (Oct. 16, 2018, F072740) [nonpub. opn.].)
On May 4, 2022, defendant filed a petition for resentencing under section 1170.95.
The People opposed the petition, arguing “defendant’s murder and attempted murder
convictions had nothing to do with the natural and probable consequences
doctrine, … the felony murder rule, or any theory under which malice is imputed.” The
People also argued that defendant’s jury found he acted with intent to kill/express malice.
At a hearing on July 22, 2022, the court denied defendant’s petition. The court
concluded that defendant “would still be convicted today under [section] 1170.95, under
the newly drafted 189 of the Penal Code.”
After the court ruled, defense counsel said his client was “asking the Court to
reduce his restitution fine that was imposed at the time of the original sentencing.” The
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
court said it did not have the authority to do that because it was not part of the limited
issue presented by the 1170.95 petition.
DISCUSSION
Though defendant is presently appealing the denial of his motion for resentencing,
his sole claim is a request we reduce his $10,000 restitution fine. However, he does not
provide any cogent explanation for why he would be entitled to such relief.
Consequently, we deny the request.
Defense counsel also requests that this court conduct an independent review of the
record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel acknowledged the
split of authority at the time of briefing as to whether Wende applies to petitions for
resentencing under section 1170.95. The Supreme Court has now resolved the issue,
holding that Wende does not apply. (People v. Delgadillo (2022) 14 Cal.5th 216.)
We deny defendant’s request that we perform an independent review of the record.
DISPOSITION
The order denying defendant’s petition for resentencing is affirmed.
3.