People v. Shue CA5

California Court of Appeal Jun 12, 2023 No. F085334Unpublished

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Holding. The court dismissed the appeal of the denial of a section 1172.6 petition because the appellant failed to file a supplemental brief after being notified that independent Wende review is not required for such appeals.

Issues

Whether the trial court erred in denying the defendant's petition for resentencing under Penal Code section 1172.6.
Whether the appeal should be dismissed as abandoned following the appellant's failure to file a supplemental brief after being notified of the procedures set forth in People v. Delgadillo.

Disposition. dismissed

Quotations verified verbatim against the opinion

“the California Supreme Court determined in Delgadillo that independent Wende review is not required for appeals from the denial of section 1172.6 petitions”

“Since more than 30 days have elapsed, and we have received no communication from appellant, we consider his appeal abandoned and order dismissal.”

Filed 6/12/23 P. v. Shue 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F085334 Plaintiff and Respondent, (Merced Super. Ct. No. SUF25245) v.

JERRY SHUE, OPINION Defendant and Appellant.

THE COURT * APPEAL from a judgment of the Superior Court of Merced County. Steven K. Slocum, Judge. Thomas Owen, 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., Smith, J. and Snauffer, J.

In 2001, appellant and defendant Jerry Shue (appellant) was convicted, after a jury trial, of first degree premeditated murder (Pen. Code, § 187, subd. (a)),1 with the personal use of a firearm (§ 12022.5, subd. (a)(1)), and that he personally and intentionally discharged a firearm and inflicted great bodily injury (§§ 12022.53, subd. (d); 12022.7); and other felonies. On direct appeal, this court affirmed the convictions, corrected sentencing errors, and appellant’s sentence was amended to 10 years plus 80 years to life. (People v. Shue (May 5, 2003, F039610) [nonpub. opn.].)2 In 2022, appellant filed a petition for resentencing of his first degree murder conviction pursuant to section 1172.6.3 The People filed opposition, supported by the jury instructions and verdict forms and requested the court take judicial notice of the record of appellant’s jury trial. The superior court appointed counsel, conducted a hearing, and denied the petition, finding appellant failed to state a prima facie case because he was not convicted on any theory of imputed malice. 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 March 24, 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

People v. Shue CA5

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