People v. Melendez CA3

Filed 6/14/23 P. v. Melendez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Lassen) ----

THE PEOPLE, C097685

Plaintiff and Respondent, (Super. Ct. No. 2006CR0021650, CH023948) v.

DAVID MELENDEZ,

Defendant and Appellant.

Defendant David Melendez appeals from a postconviction order denying his petition for resentencing under former Penal Code section 1171.1 (now section 1172.75).1 Appointed counsel for defendant asked this court to independently review the

1 Further undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1171.1 to section 1172.75 without substantive change. (Stats. 2022, ch. 58, § 12.) Throughout this opinion we cite to section 1172.75 for ease of reference.

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record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) to determine whether there are any arguable issues on appeal, and defendant has filed a supplemental brief raising various issues. We have considered defendant’s arguments and will affirm the trial court’s order. (See, e.g., People v. Delgadillo (2022) 14 Cal.5th 216, 231-232 (Delgadillo).) I. BACKGROUND In 2007, defendant pled guilty to attempted second degree murder and admitted a prior strike conviction in exchange for the low term of five years in state prison, doubled to 10 years for the strike prior, and dismissal of the remaining charges. The court sentenced defendant to the stipulated term. In September 2022, defendant filed a section 1172.75 petition to vacate enhancements imposed under section 667.5 and Health and Safety Code section 11370.2. Based on section 1172.75, defendant argued the enhancements were no longer valid, and he requested recall and resentencing. The trial court denied defendant’s petition at a hearing in November 2022, finding that defendant’s sentence did not include either enhancement. Defendant appealed. II. DISCUSSION Defendant’s appointed counsel has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the date the opening brief was filed. Defendant filed a supplemental brief. In Wende, our Supreme Court held that “Courts of Appeal must conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal which raises no specific issues or describes the appeal as frivolous.” (Delgadillo, supra, 14 Cal.5th at p. 221.) The Wende procedure applies “to the first appeal as of right and is