People v. Cingcon CA3

Filed 10/13/23 P. v. Cingcon CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C098296

Plaintiff and Respondent, (Super. Ct. No. 15F00349)

v.

DAVID RICHARD CINGCON,

Defendant and Appellant.

In 2016, a jury found defendant David Richard Cingcon guilty of attempted murder, assault with a firearm, and unlawful possession of a firearm by a felon. The jury also found true various firearm and great bodily injury enhancements, including that defendant personally and intentionally discharged a firearm causing great bodily injury. Finally, in a bifurcated proceeding, the trial court found defendant had three prior serious felony convictions and prior strikes. (People v. Cingcon (Jul. 18, 2017, C083020) [nonpub. opn.].) Defendant appealed, and we modified the judgment to correct certain

1

fines and the restitution award, as well as to order correction of errors in the abstract of judgment. We otherwise affirmed the judgment in an unpublished decision. (Ibid.) On remand and in response to defendant’s petition for writ of habeas corpus, the trial court clarified defendant’s prison sentence for the attempted murder count, noting defendant had been sentenced to 44 years to life for the attempted murder, plus 25 years to life for the Penal Code1 section 12022.53, subdivision (d) enhancement, plus two five- year terms for prior serious felony enhancements. The court made further corrections to the sentence for counts two and three, which we need not recount here. On October 12, 2022, defendant filed a petition for resentencing under former section 1170.95 (now section 1172.6).2 The trial court appointed counsel and briefing ensued. On February 24, 2023, the trial court held a prima facie hearing and denied defendant’s petition, finding the jury instructions given did not implicate the legislative changes. Rather defendant’s jury had been instructed with CALCRIM No. 600, which required the jury to find defendant intended to kill in order to find him guilty of attempted murder. Defendant timely appealed. On August 1, 2023, defendant’s appellate counsel filed a brief raising no arguable issues under People v. Delgadillo (2022) 14 Cal.5th 216, but requesting we exercise our discretion to review the entire record for arguable issues on appeal. Appellate counsel also wrote defendant, explaining she would be filing a Delgadillo brief, and if defendant failed to file a supplemental brief, his appeal would likely be dismissed. On August 2, 2023, this court also sent a letter notifying defendant: (1) his counsel filed an appellate brief stating her review of the record did not identify any