People v. Burnett CA3

Filed 1/16/24 P. v. Burnett CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C099039

Plaintiff and Respondent, (Super. Ct. No. 96F05901)

v.

CARLOS RAMARO BURNETT,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216.

FACTS AND HISTORY OF THE PROCEEDINGS On April 10, 1997, a jury found defendant Carlos Ramaro Burnett guilty of first degree murder and attempted murder after he and a codefendant shot and killed the victim in a gang-related incident. (People v. Burnett (June 30, 1998, C026520) [nonpub. opn.].) The jury also found true allegations that defendant personally used a firearm in

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the commission of both crimes and intentionally killed the victim by discharging a firearm from a motor vehicle. (Ibid.) We affirmed the convictions in an unpublished decision in 1998. (Ibid.) After the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015), defendant sought resentencing under former Penal Code section 1170.95. (Former section 1170.95 has since been renumbered section 1172.6, with no change in text, we will cite to the current section 1172.6 [see stats. 2022, ch. 58, § 10]; statutory section citations that follow are found in the Penal Code unless otherwise stated.) On September 8, 2021, defendant filed his first section 1172.6 petition for resentencing. On March 10, 2022, defendant filed his second section 1172.6 petition for resentencing asserting factual innocence. This petition was stayed in light of the appeal of defendant’s first section 1172.6 petition. Defendant then filed a third petition for resentencing on April 5, 2023. The People moved to dismiss the third petition without prejudice on the grounds that it encompassed the same subject matter as defendant’s two other pending petitions that were not yet final. On June 7, 2023, the trial court dismissed this third petition as requested. Defendant appealed. Defendant’s appellate counsel filed a brief under Wende and Delgadillo requesting this court exercise its discretion to independently review the record for error. On December 2, 2023, appellate counsel wrote defendant, explaining he would be filing a Delgadillo brief, and if defendant failed to file a propria persona supplemental brief, his appeal would likely be dismissed. On December 4, 2023, this court sent a letter notifying defendant: 1) his counsel filed an appellate brief stating his review of the record did not identify any arguable issues; 2) as a case arising from an order denying postconviction relief, defendant was not constitutionally entitled to counsel or to an independent review of the record; and 3) in accordance with the procedures set forth in Delgadillo, defendant had 30 days to file a supplemental brief or letter raising any argument he wanted this court to consider. In