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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

v.

FIDEL MORALEZ,

Defendant and Appellant.

C099390

(Super. Ct. No. 13F06775)

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defendant’s sentence, struck the no longer valid prior prison term enhancements, and 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.
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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 

1 Undesignated statutory references are to the Penal Code.
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enhancement to only prior terms for sexually violent offenses.” (People v. Burgess

(2022) 86 Cal.App.5th 375, 380 (Burgess).)

Effective January 1, 2022, Senate Bill No. 483 (2021-2022 Reg. Sess.) made the 

change fully retroactive (Stats. 2021, ch. 728, § 1) and added former section 1171.1, now 

section 1172.75, to the Penal Code. (Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12.) 

The provision states that “[a]ny sentence enhancement that was imposed prior to 

January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any 

enhancement imposed for a prior conviction for a sexually violent offense . . . is legally 

invalid.” (§ 1172.75, subd. (a).) “The statute further establishes a mechanism to provide 

affected defendants a remedy for those legally invalid enhancements . . . [,] direct[ing] 

the Secretary of the California Department of Corrections and Rehabilitation . . . to 

‘identify those persons in their custody currently serving a term for a judgment that 

includes an enhancement described in subdivision (a) and . . . provide the name of each 

person, along with the person’s date of birth and the relevant case number or docket 

number, to the sentencing court that imposed the enhancement.’ (§ 1172.75, subd. (b).)” 

(Burgess, supra, 86 Cal.App.5th at p. 380.) The statute then directs the trial court to 

review the judgment, verify that it includes such an enhancement, “and if so, ‘recall the 

sentence and resentence the defendant.’ (§ 1172.75, subd. (c).)” (Burgess, at p. 380.)

In June 2023, the trial court determined defendant’s judgment included one-year 

prior prison term enhancements, appointed counsel for defendant, and placed the matter 

on calendar for resentencing. Defendant’s counsel asked the trial court to remove not 

only the one-year prior prison term enhancements, but also the prior strike convictions

under Romero and the five-year serious felony conviction enhancements (§ 667, 

subd. (a)). The People argued that reducing defendant’s sentence beyond dismissing 

the one-year prior prison term enhancements would endanger public safety.

At resentencing, the trial court recalled defendant’s sentence, struck the prior 

prison term enhancements, and reduced the upper term to the middle term, for an 
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aggregate sentence of 20 years. The trial court acknowledged its discretion to strike 

the prior strike offense, as well as the great bodily injury and prior serious felony 

enhancements. But the trial court concluded it would be contrary to the interests of 

justice to reduce defendant’s sentence beyond striking the prison priors and reducing the 

upper term sentence. In reaching its decision, the trial court noted defendant’s ongoing 

criminal conduct spanning decades, extending into his time in prison.

II

Having undertaken an examination of the entire record, we find no arguable error 

that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

 /S/

MAURO, J.

We concur:

 /S/

HULL, Acting P. J.

 /S/

WISEMAN, J.*

*

 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned 

by the Chief Justice pursuant to article VI, section 6 of the California Constitution.