People v. Garcia CA5

Filed 6/2/23 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085007
Plaintiff and Respondent,
(Fresno Super. Ct. No. CF03907163)
v.
MIGUEL GARCIA, JR., OPINION
Defendant and Appellant.
THE COURT1*
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
Aurora Elizabeth Bewicke, 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., Levy, J. and De Santos, J.
In 2005, appellant and defendant Miguel Garcia, Jr. (appellant) was convicted
after a jury trial of count 1, first degree murder, with an enhancement for personally and
intentionally discharging a firearm which proximately caused death or great bodily
injury; and count 2, felon in possession of a firearm, and admitted prior conviction
allegations. He was sentenced to an aggregate term of 75 years to life plus five years in
prison. 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 and submitted the jury instructions as supporting
exhibits. The superior court appointed counsel, conducted a hearing, and denied the
petition with prejudice, finding appellant failed to state a prima facie case because the
jury instructions and verdict showed he was convicted as the actual killer.
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 January 20, 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
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.
set forth in 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.