People v. Moralez CA3

Filed 5/21/24 P. v. Moralez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C099390

v. (Super. Ct. No. 13F06775)

FIDEL MORALEZ,

Defendant and Appellant.

In 2014, a jury found defendant Fidel Moralez guilty of second degree robbery and assault with a deadly weapon. The trial court found true allegations of prior strike convictions, prior prison terms, and other enhancements, and sentenced defendant to 27 years in state prison. This court affirmed the judgment. (People v. Moralez (Mar. 16, 2015, C076091) [nonpub. opn.] (Moralez).) Based on retroactive changes in the law, in 2023 the trial court recalled defendant’s sentence, struck the no longer valid prior prison term enhancements, and reduced the upper term sentence to a middle term, imposing an aggregate 20 years in prison. Defendant appeals from that postconviction order.

1

Appointed counsel for defendant asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende); see also People v. Delgadillo (2022) 14 Cal.5th 216, 226.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no communication from defendant. Although this is not defendant’s first appeal as of right, we nevertheless exercise our discretion to review the record because defendant was not notified that his failure to file a supplemental brief may result in dismissal of the appeal. (Delgadillo, at p. 233.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment. I In 2013, defendant took bananas, a sandwich, and water from a grocery store without paying. As he left the store, defendant stabbed the victim in the arm, leaving him with a permanent injury. The jury found defendant guilty of second degree robbery (Pen. Code, § 211)1 and assault with a deadly weapon (§ 245, subd. (a)(1)). The trial court found true allegations that defendant used a dangerous and deadly weapon (§ 12022, subd. (b)(1)), caused great bodily injury (§ 12022.7, subd. (a)), had three prior strike convictions (§§ 667, 1170.12), and served four prior prison terms (§ 667.5, subd. (b)). The trial court dismissed one prior strike conviction allegation but denied defendant’s request to dismiss the other two. The trial court sentenced defendant to an aggregate 27 years in state prison. In an unpublished opinion, this court affirmed the judgment. (Moralez, supra, C076091.) Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1) amended section 667.5 “by limiting the prior prison term