People v. Gonzales CA5

Filed 6/1/23 P. v. Gonzales 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F085132 Plaintiff and Respondent, (Madera Super. Ct. No. MCR12382) v.

GABRIEL GONZALES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Jeffrey S. Kross, 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., Franson, J. and Smith, J.

In 2002, appellant and defendant Gabriel Gonzales1 (appellant) was convicted after a jury trial of attempted premeditated murder with firearm enhancements. He was sentenced to life in prison with the possibility of parole, plus a consecutive term of 25 years to life. In 2004, 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, supported by the jury instructions given at appellant’s trial. The superior court appointed counsel, conducted a hearing, and denied the petition, finding appellant failed to make a prima facie case because he was convicted as the actual perpetrator, based upon the jury instructions and verdict. 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 February 21, 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 set forth in Delgadillo, appellant had 30 days in which to file a supplemental brief or