California Court of Appeal Mar 6, 2024 No. E082067Unpublished
Filed 3/6/24 P. v. Torres CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082067
v. (Super.Ct.No. FVI1101609)
DAVID JERRY TORRES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John P. Vander
Feer, Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
I.
INTRODUCTION
This is defendant and appellant David Jerry Torres’s third appeal. Defendant
presently appeals the trial court’s postjudgment order denying his request to dismiss the
firearm enhancement or to impose a lesser firearm enhancement pursuant to a newly
enacted statutory provision that grants a sentencing court the discretion to strike or
impose a lesser firearm enhancement (Senate Bill No. 620). Counsel has filed a brief
On December 3, 2018, this court affirmed the judgment, but ordered the matter
remanded for resentencing on the firearm enhancement “to allow the trial court to
exercise its discretion as to whether the firearm enhancement under section 12022.53,
subdivision (d), should be stricken pursuant to section 1385.” (Torres I, supra,
E069238.)
On July 26, 2019, the People filed a sentencing memorandum asserting that the
firearm enhancement should not be stricken. On that same day, the sentencing court
declined to exercise its discretion to strike the 25-year-to-life firearm enhancement.
Specifically, the court stated, “[t]he Court believes that this is not a case that justifies
striking and exercising my discretion to strike the 25-year enhancement, so that petition
to do so is denied,” and “[f]or the record, I should indicate that I think that it was proven
that Mr. Torres was indeed the actual person who did the killing—was the person who
personally discharged the firearm.” (Torres II, supra, E075901.) The court, however,
1 All future statutory references are to the Penal Code.
3
did not explicitly resentence defendant after refusing to exercise its discretion to strike
the firearm enhancement.
Defendant again appealed, and on November 10, 2021, we concluded the trial
court lacked authority to impose a lesser included firearm enhancement at the
resentencing hearing but concluded the matter should be remanded for pronouncement of
sentence as the court had failed to orally pronounce a sentence at the resentencing
hearing. (Torres II, supra, E075901.)
On January 19, 2022, the California Supreme Court granted review of this case,
and deferred briefing pending the decision in People v. Tirado (2022) 12 Cal.5th 688
(Tirado). (Torres II, supra, E075901.)
The Supreme Court subsequently issued its decision in Tirado, supra, 12 Cal.5th
688, and on April 27, 2022, transferred this matter back to us with directions to vacate
our decision filed November 10, 2021, and reconsider the cause in light of Tirado.2 We
thus vacated our November 10, 2021, decision, and allowed the parties to file
supplemental briefs. (Torres II, supra, E075901.)
2 Tirado conclusively establishes that the trial court has the discretion to strike the section 12022.53, subdivision (d) firearm enhancement and impose a lesser firearm enhancement under subdivisions (b) or (c) of that section, since by finding the greater enhancement true the jury necessarily found true facts supporting the lesser enhancements. (See Tirado, supra, 12 Cal.5th at pp. 700-702.)
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On July 5, 2022, we vacated the sentence and remanded to the trial court for
resentencing in light of Tirado. In all other respects, we affirmed the judgment. (Torres
II, supra, E075901.)
The resentencing hearing was held on August 25, 2023. The court noted that it
had read and considered the probation officer’s report and the recommendation as to
sentencing, the People’s November 9, 2022, sentencing memorandum, defendant’s
August 24, 2023, sentencing memorandum, and the victim impact statement. Defense
counsel and the prosecutor submitted on the court’s discretion. After the court analyzed
the legislative history of Senate Bill No. 620, noted its discretion under the law and
examined the circumstances of defendant’s history, the trial court declined to exercise its
discretion to dismiss the firearm enhancement or to impose a lesser firearm enhancement.
The court imposed 15 years to life for murder and 25 years to life for the firearm
enhancement and reduced the amount of the restitution fines to $1,000. Defendant timely
appealed.
III.
DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the
authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a
statement of the case and a summary of the procedural background. Counsel considered
potential issues on appeal but found no specific arguments as grounds for relief, and
requests that we exercise our discretion and independently examine the appellate record
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for any arguable issues. Under Anders, which requires “a brief referring to anything in
the record that might arguably support the appeal” (Anders, at p. 744), counsel raises the
issues of whether the trial court abused its discretion by declining to dismiss the firearm
enhancement or impose a lesser firearm enhancement.
We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so.
In Delgadillo, supra, 14 Cal.5th 216, the California Supreme Court held that
Wende and Anders procedures do not apply in appeals from the denial of a section 1172.6
postjudgment petition. (Delgadillo, at pp. 224-226.) Thus, we need not examine the
entire record ourselves to look for arguable grounds for reversal. Because defendant’s
counsel filed a brief raising no issues, and defendant was given an opportunity to file a
personal supplemental brief but declined, we may dismiss the appeal as abandoned. (Id.
at pp. 230-232.) “Independent review in Wende appeals consumes substantial judicial
resources,” and “[t]he state . . . has an interest in an ‘economical and expeditious
resolution’ of an appeal from a decision that is ‘presumptively accurate and just.’” (Id. at
p. 229.) While this postjudgment appeal involves an appeal from a recent statutory
provision that grants a sentencing court the discretion to strike or impose a lesser firearm
enhancement as articulated in Senate Bill No. 620, Delgadillo’s reasoning equally applies
here.
We, however, have discretion to conduct Wende review even when it is not
required. (Delgadillo, supra, 14 Cal.5th at p. 232.) In this case, independent review of
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the record by this court is particularly appropriate. Upon receipt of appointed appellate
counsel’s no-issues brief submitted on behalf of defendant, the clerk of this court sent to
defendant a “Delgadillo notice.” That notice cited Delgadillo, and correctly informed
defendant that this court is not required to conduct an independent review of the record in
appeals from postconviction proceedings, and that failure to timely file a supplemental
brief may result in dismissal of his appeal as abandoned.
The brief filed by defendant’s counsel and served on defendant, however, does not
mention Delgadillo. It instead states, “[t]he applicable law in this case is People v.
Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738.” (Italics
added.) Counsel’s declaration avers that she wrote to defendant and informed him of her
intention to ask this court for an independent review of the record “pursuant to the
procedures that are specified in” Anders and Wende. Counsel also advised defendant of
his right to file a supplemental brief, but there is no indication in counsel’s declaration
that she explained to defendant that this court is not required to independently review the
record and that failure to file a brief might result in dismissal of his appeal as abandoned.
There is an important distinction between the procedures afforded by reviewing
under Anders/Wende and those employed pursuant to Delgadillo. Under Anders/Wende,
independent review by the reviewing court occurs automatically, irrespective of whether
a defendant files a supplemental brief; under Delgadillo, record review is discretionary
and, if the defendant does not file a supplemental brief, the reviewing court may simply
issue an order dismissing the appeal as abandoned. (Delgadillo, supra, 15 Cal.5th at
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pp. 232-233.) When the Delgadillo procedures apply to an appeal but the reviewing
court’s notice to a defendant of the right to file a supplemental brief refers only to Anders
and Wende, the notice may be suboptimal if the defendant could reasonably have
concluded the court would independently review the record even absent a supplemental
brief. (Delgadillo, at pp. 231-232.)
In this case, this court properly sent a Delgadillo notice to defendant, but it is
reasonably probable that defendant may have been confused by, or even relied upon, the
incorrect information provided by his counsel that the Anders/Wende procedures apply to
his appeal. Under these circumstances, we believe it particularly important for this court
to conduct an independent review of the record on appeal.
An appellate court conducts a review of the entire record to determine whether the
record reveals any issues which, if resolved favorably to defendant, would result in
reversal or modification of the judgment. (Wende, supra, 25 Cal.3d at pp. 441-442;
People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders, supra, 386 U.S. at p. 744.)
We have independently reviewed the entire record for potential error and find no
arguable error that would result in a disposition more favorable to defendant.
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IV.
DISPOSITION
The trial court’s order denying defendant’s petition to dismiss the firearm
enhancement or impose a lesser firearm enhancement is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
RAMIREZ P. J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's order denying the defendant's request to dismiss or impose a lesser firearm enhancement after conducting an independent review of the record.
Issues
Did the trial court abuse its discretion by declining to dismiss the firearm enhancement or impose a lesser firearm enhancement?
Does the independent review procedure under People v. Wende and Anders v. California apply to this postjudgment appeal?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.”
“The trial court’s order denying defendant’s petition to dismiss the firearm enhancement or impose a lesser firearm enhancement is affirmed.”