California Court of Appeal Mar 18, 2025 No. E084539Unpublished
Filed 3/18/25 P. v. Gondeck CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084539
v. (Super.Ct.No. 16CR-031970)
BRANDON GONDECK, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Uhler,
Judge. Affirmed.
Brandon Gondeck, in pro. per.; Richard Schwartzberg, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
1
INTRODUCTION
Defendant and appellant Brandon Gondeck appeals from a postjudgment order
denying his petition for resentencing under former Penal Code1 section 1170.95
(renumbered section 1172.6 by Stats. 2022, ch. 58, effective June 30, 2022)2 His
appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216
(Delgadillo), and defendant filed a supplemental brief. We have reviewed the
contentions defendant raised in his supplemental brief and affirm the order.
PROCEDURAL BACKGROUND
On July 11, 2018, defendant and his codefendants were charged by information
with murder (§ 187, subd. (a), count 1), and street terrorism (§ 186.22, subd. (a), count 2).
It was further alleged that count 1 was committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(C)), and that a principal personally used a firearm, which
proximately cause great bodily injury and death (§ 12022.53, subds. (d) & (e)(1)). It was
alleged that defendant was 16 years or older at the time of the offenses.
On February 14, 2020, defendant entered a plea agreement and pled guilty to
second degree murder in count 1, in exchange for the dismissal of the remaining count
and allegations. In accordance with the plea agreement, the court sentenced defendant to
15 years to life in state prison and dismissed the remaining count and allegations.
1 All further statutory references will be to the Penal Code, unless otherwise indicated. 2 To avoid confusion, we will refer to the statute as section 1172.6 in this opinion.
2
On or around December 12, 2023, defendant filed an in propria persona petition
for resentencing, pursuant to section 1172.6. The People filed a brief in response,
arguing that defendant was ineligible for relief because he pled guilty after the effective
date of Senate Bill No. 1437.
On July 26, 2024, the court held a hearing on the petition. The court noted that
defendant pled guilty in 2020, after the operative date of section 1172.6. As such, the
court concluded that defendant was ineligible for relief under section 1172.6 and denied
the petition.
Defendant filed a timely notice of appeal of the denial of the petition.
DISCUSSION
Defendant was provided notice under Delgadillo and advised that counsel filed a
brief stating no arguable issues could be found, and that because this is an appeal from a
postconviction proceeding, this court is not required to conduct an independent review of
the record but may do so in its discretion. (Delgadillo, supra, 14 Cal.5th at p. 232.) The
notice advised him that he could file a supplemental brief within 30 days. Defendant
filed a supplemental brief. Where a defendant has filed a supplemental brief, a court of
appeal need only evaluate the specific arguments presented in the brief. (Ibid.) “The
filing of a supplemental brief or letter does not compel an independent review of the
entire record to identify unraised issues.” (Ibid.)
In his brief, defendant asserts that Senate Bill Nos. 1437 and 775 “[e]stablished a
bedrock principle . . . that a person should be punished for his or her actions according to
3
his or her own level of individual culpability”. He then argues that he never harbored the
intent to kill and was not the actual killer; thus he is entitled to resentencing under Senate
Bill Nos. 1437 and 775.
The trial court here correctly found that defendant was ineligible for resentencing
as a matter of law. “Effective January 1, 2019, the Legislature passed Senate Bill No.
1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437). This amended both the felony-
murder rule and the natural and probable consequences doctrine to ensure that murder
liability is not imposed on a person who is not the actual killer, did not act with the intent
to kill, or was not a major participant in the underlying felony who acted with reckless
indifference to human life. [Citation.] Senate Bill No. 1437 also added Penal Code former
section 1170.95, now renumbered as section 1172.6. This created a procedural
mechanism for those convicted under the former law to seek retroactive relief.” (People
v. Reyes (2023) 97 Cal.App.5th 292, 295 (Reyes).)
In Reyes, supra, 97 Cal.App.5th 292, the court held the procedure for seeking
resentencing relief set forth in section 1172.6 does not apply to defendants who were
convicted after the effective date of the current law. (Id. at pp. 296, 298-299.) The court
stated: “[S]ection 1172.6 ‘provides a procedure whereby persons convicted of murder
under a now-invalid theory may petition to vacate their conviction.’” (Id. at pp. 298-
299.)
The Reyes court explained that the appellant in that case was ineligible for
resentencing because, in order to be resentenced, a petitioner must allege that he could
4
not presently be convicted of murder “because of changes” brought by Senate Bill No.
1437. (Reyes, supra, 97 Cal.App.5th at p. 298; § 1172.6, subd. (a)(3).) The court noted:
“Appellant was not convicted under the prior law, which permitted a theory of murder
based on imputed malice. Instead, he entered his change of plea in 2021, with the advice
and consent of legal counsel. When appellant entered his change of plea, the now invalid
theories of murder liability had already been eliminated.” (Ibid.) Therefore, the court
held that the appellant did not qualify for resentencing under section 1172.6. (Id. at p.
299.)
Pursuant to Reyes, defendant here does not qualify for relief under section 1172.6,
since he was convicted in 2020, after the effective date of the current law.3
(Reyes, supra, 97 Cal.App.5th at p. 299.) Thus, the court properly denied his
resentencing petition.
3 Defendant cites Senate Bill No. 775, which expanded the scope of relief under section 1172.6 to individuals convicted of attempted murder and voluntary manslaughter; however, defendant pled guilty to murder. Further, Senate Bill No. 775 does not change our analysis. (See Stats. 2021, ch. 551, § 1, subd. (a); § 1172.6, subd. (a).)
5
DISPOSITION
The trial court’s order denying defendant’s resentencing petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J.
MILLER J.
6
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant convicted of murder after the effective date of Senate Bill No. 1437 is ineligible for resentencing relief under Penal Code section 1172.6.
Issues
Whether a defendant who pled guilty to murder after the effective date of Senate Bill No. 1437 is eligible for resentencing under Penal Code section 1172.6.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the procedure for seeking resentencing relief set forth in section 1172.6 does not apply to defendants who were convicted after the effective date of the current law.”
“defendant here does not qualify for relief under section 1172.6, since he was convicted in 2020, after the effective date of the current law.”