People v. Ackley CA5

Filed 6/29/23 P. v. Ackley 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F085460
Plaintiff and Respondent,
(Fresno Super. Ct. No. CF95552744)
v.
DONALD JOHN ACKLEY, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. F. Brian
Alvarez, Judge.
Larenda R. Delaini, 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., Snauffer, J. and De Santos, J.
In 1996, appellant and defendant Donald John Ackley pleaded guilty to second
degree murder (Pen. Code, §187, subd. (a))1 and admitted he personally used a firearm
(§ 12022.5, subd. (a)). Appellant was sentenced to 15 years to life plus three years.2
In 2022, appellant filed a petition for resentencing pursuant to section 1172.6.3
The superior court appointed counsel. The People filed opposition and appellant’s
counsel filed a reply. The court conducted a hearing on appellant’s petition, and found he
failed to make a prima facie showing because he was ineligible for resentencing.
On appeal, appellant’s counsel filed a brief with this court pursuant to People v.
Wende (1979) 25 Cal.3d 436 (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 May 11, 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
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2 In 2012, appellant appeared at a Board of Parole Hearing and was sworn as a
witness, and stated he argued with victim, appellant waived around a gun and pulled the
trigger, the gun went off and the victim was killed. Appellant stated he wasn’t trying to
kill the victim but declined to say it was an accident. At the hearing on appellant’s
section 1172.6, the superior court declined to rely on the transcript of the board’s hearing
to determine whether appellant’s petition stated a prima facie case.
3 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.) As such, we refer to the subject statute by its current number throughout this
opinion.
2.
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.