People v. Gutierrez CA1/5

Filed 8/18/23 P. v. Gutierrez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FIVE
THE PEOPLE,
Plaintiff and Respondent, A165662
v.
RENE GUTIERREZ, (Contra Costa County
Defendant and Appellant. Super. Ct. No. 051705821)
Defendant appeals after he was resentenced by the trial court following
the partial grant by the United States District Court for the Northern
District of California of his pro se petition for a writ of habeas corpus.
Defendant’s appellate counsel filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende), requesting this court to independently review the
record on appeal to determine whether it contains any arguable issues.
Defendant filed a supplemental brief. As discussed post, because defendant
is appealing after resentencing, we apply the procedures in People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo).
BACKGROUND
Defendant was convicted after a jury trial of 10 counts of committing a
lewd act upon three children (Pen. Code, § 288, subd. (a))1 and one count of
1 All statutory references are to the Penal Code.
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first degree burglary (§ 459). The trial court sentenced him to four
consecutive terms of 25 years to life on counts 1, 3, 4, and 5 (§ 667.61) and to
a determinate term of 10 years on the remaining counts. We affirmed
defendant’s judgment on appeal. (People v. Gutierrez (Feb. 11, 2019,
A153194) [nonpub. opn.].) The California Supreme Court denied defendant’s
petition for review.
On August 12, 2020, defendant filed a petition for a writ of
habeas corpus under title 28 United States Code section 2254 in the United
States District Court for the Northern District of California. The district
court issued an order to show cause, and after briefing, it issued an order
granting the petition as to the burglary count (count 2) and the burglary
enhancement on count 1. The district court vacated defendant’s burglary
conviction (count 2) and the burglary enhancement on count 1 and remanded
the case to the trial court for resentencing or retrial on the burglary count.
On remand, the People opted not to retry defendant for burglary. The
trial court vacated the burglary conviction (count 2) and the burglary
enhancement on count 1 and resentenced defendant to four consecutive terms
of 25 years to life on counts 1, 3, 4, and 5 (§§ 288, subd. (a), 667.61) and to a
determinate term of five years four months on counts 6–11 (§§ 288, subd.
(c)(1), 1170.1), comprised of the middle term of two years on count 6 and one-
third the middle term (eight months), consecutive, on counts 7–11. The trial
court subsequently issued a third amended abstract of judgment, correcting
the total custody credits per defendant’s request.
Defendant’s appellate counsel filed a brief pursuant to Wende,
requesting this court to independently review the record on appeal to
determine whether it contains any arguable issues. Defendant filed a
supplemental brief.
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DISCUSSION
As our Supreme Court recently explained, Wende held that “Courts of
Appeal must conduct a review of the entire record whenever appointed
counsel submits a brief on direct appeal which raises no specific issues or
describes the appeal as frivolous.” (Delgadillo, supra, 14 Cal.5th at p. 221.)
The Wende procedure applies “to the first appeal as of right and is compelled
by the constitutional right to counsel under the Fourteenth Amendment of
the United States Constitution.” (Ibid.) Delgadillo held that Wende
independent review is not constitutionally required in an appeal from a
postconviction order denying a section 1172.6 petition for resentencing
because the denial does not implicate a defendant’s constitutional right to
counsel in a first appeal as of right. (Delgadillo, supra, 14 Cal.5th at pp. 222,
224–225.) It further held that if the defendant files a supplemental brief, the
court must evaluate the arguments presented, but the court is not required to
independently review the entire record to identify unraised issues. (Id. at
p. 232.) Although the postconviction relief at issue here is different than that
in Delgadillo, the same principles may apply because this is not defendant’s
first appeal as of right. However, we exercise our discretion to independently
review the record.
Defendant’s supplemental brief does not raise any issue cognizable on
appeal from his resentencing after remand by the district court. He
references issues relating to the now vacated burglary conviction as well as
allegations of juror bias, ineffective assistance of counsel based on an
allegedly inadequate pretrial investigation and failure to call certain
witnesses, and insufficiency of the evidence as to two of the three victims.
Defendant’s supplemental brief also appears to complain generally about
certain jury instructions that were given, and he includes with his brief
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multiple pages of jury instructions and the reporter’s transcript of the giving
of some of the jury instructions.2 None of the issues defendant references in
his supplemental brief relate to the matter currently before the court, which
is his resentencing after remand from the district court.
We have independently reviewed the record on appeal. Following the
district court’s order vacating defendant’s burglary conviction and the
burglary enhancement as to count 1 and remanding to the trial court for
resentencing, the trial court resentenced defendant to four consecutive terms
of 25 years to life on counts 1, 3, 4, and 5 (§§ 288, subd. (a), 667.61) and a
determinate term of five years four months on counts 6–11 (§§ 288, subd.
(c)(1), 1170.1), comprised of the middle term of two years on count 6 and one-
third the middle term (eight months), consecutive, on counts 7–11. The trial
court’s decisions were proper. We find no reasonably arguable appellate
issue, and we are satisfied that counsel has fully complied with his
responsibilities. (Delgadillo, supra, 14 Cal.5th at p. 233; Wende, supra, 25
Cal.3d at pp. 440–442.)
DISPOSITION
The judgment is affirmed.
2 Our decision in the direct appeal found substantial evidence
supported defendant’s convictions. (People v. Gutierrez, supra, A153194.) We
also addressed in the direct appeal, among other issues, defendant’s
contentions regarding allegedly improper jury instructions, and we found no
prejudicial error. (Ibid.)
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_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Chou, J.
A165662/People v. Rene Gutierrez
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