California Court of Appeal Apr 3, 2024 No. E082119Unpublished
Filed 4/3/24 P. v. Guevara CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082119
v. (Super. Ct. No. BLF1600104)
JUAN GUEVARA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Dismissed.
Larenda R. Delaini, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant Juan Guevara appeals the trial court’s postjudgment order 1 denying his petition for resentencing pursuant to Penal Code sections 1172.7 and
1 Unless otherwise indicated, all future statutory references are to the Penal Code.
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1172.75. Counsel has filed a brief under the authority of People v. Delgadillo (2022) 14
Cal.5th 216 (Delgadillo), requesting this court to conduct an independent review of the
record. In addition, defendant has had an opportunity to file a supplemental brief with
On June 26, 2023, pursuant to section 1172.75, subdivision (c), the trial court
resentenced defendant and ordered stricken the consecutive one-year sentence imposed
for the prior prison term (§ 667.5, subd. (b)). The court ordered that other portions of the
sentence remained “in full force and effect. . . without prejudice,” with a further hearing
scheduled in September 2023.
On June 28, 2023, defendant filed a brief pursuant to sections 1172.7 and 1172.75,
seeking a full resentencing hearing on the basis that defendant was no longer a danger to
public safety and thus his incarceration was contrary to the interests of justice. Defendant
asserted that he had completed a substance abuse disorder program and anger
management classes, in addition to finding religion, staying out of trouble and working
on his GED. Defendant also noted that the underlying offense was nonviolent.
On September 5, 2023, the People filed an opposition brief contending that
defendant was ineligible for further relief because he had resolved his underlying matter
by plea bargain. Alternatively, the People argued that defendant posed a danger to public
safety and that amendments to section 1385, subdivision (c) do not apply to prior strike
convictions.
A hearing on defendant’s petition was held on September 11, 2023. At the start of
the hearing, defense counsel advised the trial court that he had authority to conduct the
hearing in defendant’s absence and waived defendant’s appearance. Defense counsel
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thereafter argued that the court should strike the prior strike conviction in light of section
1385, subdivision (c). In support, counsel noted that defendant had some certificates of
accomplishments and that the current offense of battery on a non-prisoner was
nonviolent. The prosecutor first noted that the trial court did not have the authority to
reach the substantive issue since defendant had pleaded guilty. And if the court
addressed the merits, the prosecutor urged that defendant was not a candidate for further
resentencing relief based on his criminal history and that section 1385, subdivision (c) did
not apply to strike convictions. The prosecutor noted that defendant had several juvenile
adjudications, PRCS and parole violations, two strike convictions, and prior prison
offenses.
After noting that it believed sections 1172.7 and 1172.75 applied to plea bargain
cases, the trial court denied defendant’s request to dismiss his prior strike conviction
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and declined to
apply section 1385, subdivision (c), to the prior strike conviction allegation. The trial
court explained that “within a matter of mere months” of being sentenced to state prison
for residential burglary, defendant assaulted a correctional officer. In addition, only 14
months before the residential burglary conviction, defendant was convicted of attempted
robbery, another strike. “Given the closeness in time of the two strikes to the instant
offense,” the trial court believed defendant “was essentially a poster child for recidivist
treatment” and that defendant “was clearly on a recidivist trajectory.” The court
acknowledged that defendant had accomplished much while incarcerated, but believed
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the accomplishments were insufficient to take defendant outside of the spirit of the Three
Strikes Law. Lastly, citing People v. Burke (2023) 89 Cal.App.5th 237, the court
determined that it could not dismiss the prior strike conviction pursuant to section 1385,
subdivision (c), because the Three Strikes Law is an alternate sentencing scheme and not
an enhancement.
The court thereafter struck the one-year prior prison term and adopted all of the
other prior “sentencing decisions with the exception of the fines and fees.” The court
reimposed the above-noted restitution fines and fees, but struck “[a]ll other fines and
fees” “as no longer authorized by law.” The trial court awarded defendant post-sentence
credits of 2,475 days. Defendant timely appealed.
III.
DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the
authority of Delgadillo, supra, 14 Cal.5th 216, setting forth a statement of the case and a
summary of the procedural background. (See People v. Wende (1979) 25 Cal.3d 436
(Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) 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
for any arguable issues. Under Anders, which requires “a brief referring to anything in
the record that might arguably support the appeal” (Anders, supra, at p. 744), counsel
raises the issues of whether the trial court improperly conducted the resentencing hearing
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in defendant’s absence; whether the court abused its discretion by declining to dismiss
the prior strike conviction pursuant to section 1385, subdivision (c); and whether the trial
court abused its discretion by declining to dismiss the prior strike conviction pursuant to
Romero.
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, supra, at pp. 224-226.) Thus, we need not examine
the entire record ourselves to look for arguable grounds for reversal. (Id. at p. 228.)
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 p. 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 recent
statutory provisions pursuant to sections 1172.7 and 1172.75, 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.) This case does not call for us to
exercise our discretion to independently examine the record for arguable issues, and
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decline to exercise our discretion to independently examine the record. Accordingly, we
dismiss the appeal as abandoned.
IV.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court dismissed the appeal as abandoned because appellate counsel filed a brief raising no issues and the defendant failed to file a supplemental brief after being notified of the consequences.
Issues
Whether the trial court improperly conducted the resentencing hearing in the defendant's absence.
Whether the trial court abused its discretion by declining to dismiss the prior strike conviction pursuant to section 1385, subdivision (c).
Whether the trial court abused its discretion by declining to dismiss the prior strike conviction pursuant to Romero.
Disposition. dismissed
Quotations verified verbatim against the opinion
“Because defendant’s counsel filed a brief raising no issues and defendant was notified that failure to timely file a supplemental brief may result in the dismissal of the appeal as abandoned and was given an opportunity to file a personal”