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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

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* 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 . Foll owing 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 favor able 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 alleg ing 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, subdi vision (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 violen ce 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 convict ion 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 intere st 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 pur suant 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.