Filed 3/28/24 P. v. Gonsoulin CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN GONSOULIN,

Defendant and Appellant.

F086121

(Super. Ct. No. SUF22555)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Stephanie L. 

Jamieson, Judge.

Michael C. Sampson, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

-ooOoo-

* Before Poochigian, Acting P. J., Smith, J. and Snauffer, J.
2.

Defendant Brian Gonsoulin brings this appeal after he was resentenced by the trial 

court. Counsel for defendant has submitted a brief pursuant to People v. Wende (1979) 25 

Cal.3d 436 (Wende), asking this court to conduct an independent review of the record on 

appeal. Although we offered defendant the opportunity to present his own brief on appeal 

through a letter, he has not responded. 

Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 

106, we have reviewed the entire record before this court. Following our Supreme 

Court’s direction in Kelly, we provide a brief description of the relevant facts and the 

procedural history of the case relevant to this appeal. (Kelly, at p. 110.) Finding no 

arguable error that would result in a disposition more favorable to defendant, we affirm. 

PROCEDURAL AND FACTUAL SUMMARY

On October 26, 1998, defendant was found guilty of committing a forceable rape 

(Pen. Code,1 § 261, subd. (a)(2)) and kidnapping to commit a rape (§ 209, subd. (b)(1)). 

All enhancements alleging prior convictions, including a “strike” conviction were also 

found to be true. On November 24, 1998, defendant was sentenced to serve 75 years to 

life, which resulted when his base sentence was set at 25 years to life pursuant to 

section 667.61, subdivision (d)(2), and then was tripled under section 1170.12, 

subdivision (c)(2)(A) for three prior convictions of serious or violent felonies. Defendant 

also received an additional term of eight years related to additional enhancements 

addressing the violence of the offense and prior prison terms.2 The sentences for 

kidnapping (count 2), and all remaining enhancements found true were then stayed 

pursuant to section 654.

1 All further statutory references are to the Penal Code. 

2

In an appeal from his 1998 conviction, this sentence was then reduced by one year 

when one of the enhancements imposed was stricken by this court. (See People v. 

Gonsoulin (Feb. 3, 2000, F032203) [nonpub.opn].)
3.

On October 18, 2022, the trial court concluded defendant was eligible for 

resentencing under section 1172.75, stating:

“The Court has reviewed the judgment and has determined the 

judgment includes one or more enhancements pursuant to ... 

section 667.5[, subdivision] (b). Thus, defendant qualifies for a recall and 

resentencing in this matter.”

The court then recalled defendant’s sentence, appointed counsel, and ordered a 

resentencing hearing.

Following a hearing held on March 30, 2023, the trial court vacated three prison 

prior enhancements. The court also dismissed each of the prior conviction enhancements 

citing section 1385. Finally, the court ruled it did not have discretion to dismiss the 

allegation in enhancement 1 to count 1 citing section 667.61, which set defendant’s 

sentence for count 1 at 25 years to life. (See § 667.61, subd. (g).) The court then 

resentenced defendant to the term of 25 years to life in state prison. The sentence for 

enhancement 2 to count 1 was then stayed pursuant to section 654, as was the sentence 

for count 2. Three enhancements were dismissed in the interest of justice, and the 

remaining enhancements alleged under former section 667.5, subdivision (b) were 

stricken.

After defendant filed a timely notice of appeal, appellate counsel filed a brief 

asking this court to conduct a review of the resentencing pursuant to Wende, supra, 25 

Cal.3d 436. We then sent a letter to defendant on December 27, 2023, giving him 

30 days within which to raise any issues he believed should be considered by the court. 

Defendant did not submit any response to that letter sent by the court. 

DISCUSSION

Having carefully reviewed the entire record provided for defendant’s resentencing, 

we conclude there are no arguable issues on appeal. (Wende, supra, 25 Cal.3d at 

pp. 441–443.) 
4.

DISPOSITION

The ruling resentencing defendant under section 1172.75 is affirmed.