California Court of Appeal Jul 8, 2025 No. E084626Unpublished
Filed 7/8/25 P. v. Polanco 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E084626
v. (Super.Ct.No. FWV702183)
RIGOBERTO POLANCO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. (Retired Judge of the San Bernardino Sup. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed.
Matthew Aaron Lopas, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Rigoberto Polanco appeals from an order of the San
Bernardino County Superior Court made pursuant to Penal Code section 1172.75.1 That
order strikes defendant's section 667.5, subdivision (b) prison priors but made no other
Defendant fired a gun at three young men who were walking down the street
together, killing one of them. In 2009, a jury found defendant guilty of first degree
murder with an enhancement for personally and intentionally discharging a firearm and
causing death (§§ 187, subd. (a), 12022.53, subd. (d); count 1), two counts of
premeditated and deliberate attempted murder, each with an enhancement for personally
and intentionally discharging a firearm (§§ 187, subd. (a), 664, subd. (a), 12022.53, subd.
(b)-(c); counts 2 & 3), and one count of unlawful possession of a firearm (§ 12021, subd.
(a)(1); count 4). Three one-year prison prior enhancements (§ 667.5, subd. (b)) were also
found true.
On May 29, 2009, the trial court sentenced defendant to a determinate term of 43
years 8 months, including a year for each of the prison priors. The determinate sentence
was to be followed by four consecutive terms of life with the possibility of parole,
including two with a minimum parole period of 25 years each. Defendant appealed the
judgment and we affirmed. (People v. Polanco (June 21, 2010, E048618) [nonpub.
opn.].)
1 All further statutory references are to the Penal Code.
2
On February 25, 2019, the trial court held a hearing in response to a letter from the
California Department of Corrections and Rehabilitation stating that there were mistakes
in defendant’s sentencing. The trial court corrected the May 29, 2009, sentencing order
nunc pro tunc by (i) clarifying that count 1 was first, not second, degree murder, (ii)
noting that defendant had been sentenced for seven years to life on the two premediated
and deliberated attempted murder convictions (counts 2 & 3), and (iii) imposing the
middle term of two years consecutive on count 4. It also stayed the sentences for the
three prison prior enhancements. The stays of the prison priors were not reflected in the
February 25, 2019, minute order or in the amended abstract of judgment, which was filed
on March 27, 2019.
Defendant’s case came before the trial court again in August 2024 upon its receipt
of a section 1172.75 resentencing stipulation form. The court struck the three prison
priors, but made no other changes in defendant’s sentence, noting defendant’s lack of
remorse and finding he poses a threat or danger to public safety. Because the prison
priors were stricken, we see no reason to order correction of the February 25, 2019,
minute order.
Defendant timely noticed this appeal and we appointed counsel to represent him.
DISCUSSION
Defendant’s counsel has filed a brief in accordance with the procedures outlined in
People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S.
738 setting forth a statement of the case and a summary of the facts and, citing Wende,
3
supra, at pages 440–442, advises that we are required to conduct an independent review
of the record.
Counsel notes he considered four issues: (i) whether the trial court abused its
discretion when it did not strike a section 1385, subdivision (c)(2) enhancement; (ii)
whether the People established by clear and convincing evidence that further
resentencing would endanger public safety; (iii) whether defendant’s counsel was
prejudicially ineffective by not presenting postconviction mitigation as permitted by
section 1172.75, subdivision (d)(3); and, (iv) whether the trial court erred in failing to
pronounce judgment on the indeterminate terms.
Contrary to counsel’s suggestion, an appeal from a trial court’s orders made under
section 1172.75 does not implicate the protections afforded by Wende, supra, 25 Cal.3d at
pages 441–442, such as requiring independent review of the record by Courts of Appeal
if appointed counsel files a no-issues brief. (People v. Delgadillo (2022) 14 Cal.5th 216,
226–228 (Delgadillo).) Rather, in appeals from postjudgment orders, appointed appellate
counsel who are unable to find an arguable issue must file a brief informing the appellate
court of that determination and include a concise recitation of the facts bearing on the
court’s orders (Delgadillo brief). (Id., at p. 231.)
Upon receipt of the Delgadillo brief, the appellate court is to send a copy of it to
the defendant along with a notice informing the defendant (i) of the right to file a
supplemental letter or brief, and (ii) that the failure to file a letter or brief within 30 days
may result in dismissal of the appeal. (Id., at pp. 231–232.)
4
If the defendant files a brief or letter, the appellate court is required to evaluate the
arguments he or she raises and must issue a written opinion. (Delgadillo, supra, 14
Cal.5th at p. 232.) If the defendant does not respond to the appellate court’s notice,
however, then the appellate court may exercise its discretion to dismiss the appeal as
abandoned. (Ibid.) If the appellate court chooses to dismiss, it may do so with or without
a written opinion. (Ibid.) In all cases, the appellate court has discretion to conduct an
independent review of the record. (Ibid.)
In this case, we notified defendant that his counsel had filed a brief stating no
arguable issues could be found and that this court may, but is not required, to conduct an
independent review of the record, citing Delgadillo, supra, 14 Cal.5th 216. We invited
him to file any arguments he deemed necessary and cautioned that failure to timely file a
supplemental brief might result in the dismissal of his appeal as abandoned. Defendant
did not file a brief.
Although we properly sent a Delgadillo notice to defendant, it is reasonably
probable that he may have been confused by, or even relied upon, the incorrect
information provided by his counsel that Wende procedures apply to his case.
Accordingly, we independently reviewed the record on appeal and found no error.
Neither defendant nor his counsel have presented an issue and we did not discover
an arguable issue upon our review of the record.
5
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
MILLER J. MENETREZ J.
6
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's order striking the defendant's prison prior enhancements under Penal Code section 1172.75 while declining to make further changes to the sentence, finding no error upon independent review.
Issues
Whether the trial court abused its discretion in declining to strike a section 1385 enhancement.
Whether the People established by clear and convincing evidence that further resentencing would endanger public safety.
Whether trial counsel was ineffective for failing to present postconviction mitigation.
Whether the trial court erred in failing to pronounce judgment on the indeterminate terms.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court struck the three prison priors, but made no other changes in defendant’s sentence, noting defendant’s lack of remorse and finding he poses a threat or danger to public safety.”
“Accordingly, we independently reviewed the record on appeal and found no error.”
“Neither defendant nor his counsel have presented an issue and we did not discover an arguable issue upon our review of the record.”