People v. Delgado CA3

Filed 4/27/22 P. v. Delgado CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C094001

Plaintiff and Respondent, (Super. Ct. No. 11F01402)

v.

FRANCISCO DELGADO,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). In 2012, a jury found defendant Francisco Delgado guilty of three counts of first degree murder and found true the special circumstances of discharging a firearm from a motor vehicle, and multiple murders. Defendant appeals the denial of his petition for resentencing pursuant to Penal Code section 1170.95. (Statutory section citations that follow are to the Penal Code.) His attorney filed a brief stating the facts of the case and asking this court to review the record to determine whether there are any arguable issues

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on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant did not file a supplemental brief.

FACTS AND HISTORY OF THE PROCEEDINGS Defendant and his codefendant Saul Isidro-Ausencio murdered three teenagers in a drive-by shooting. (People v. Delgado et al. (March 17, 2016, C071439) [nonpub. opn.] (Delgado)); upon defendant’s motion we incorporate this case by reference.) On the day of the murders, three men beat up Isidro-Ausencio at the entrance gate to an apartment complex where Isidro-Ausencio and defendant lived. (Ibid.) Isidro-Ausencio got up from the ground and ran into his apartment. (Ibid.) He returned immediately with a rifle and fired three or four shots at the fleeing sport-utility vehicle containing the men who beat him. (Ibid.) Defendant and Isidro-Ausencio then jumped into a car and chased the SUV but lost the assailants on the freeway. (Ibid.) Defendant took over driving because Isidro-Ausencio was very angry and drove to the area where they murdered the three teenagers. (Ibid.) Isidro-Ausencio fired three or four shots at the victims and killed them. (Ibid.) When he was arrested, defendant confessed to what happened that day and his role in the murders. (Ibid.) The jury found defendant guilty of three counts of first degree murder. (§ 187, subd (a).) (Delgado, supra, C071439.) It found true the special circumstance allegations the murders were multiple murders, and intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person and persons outside of the vehicle with the intent to inflict death. (§ 190.2, subd. (a)(3), (21).) (Delgado, supra, C071439.) The trial court sentenced defendant to three consecutive terms of life without the possibility of parole. (Ibid.) We affirmed his conviction on direct appeal. (Ibid.) After the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.), defendant sought resentencing under section 1170.95. The trial court appointed counsel and