1

Filed 2/7/23 P. v. Gerardo CA4/2 See Dissenting Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

v. JERRY LEE GERARDO, Defendant and Appellant. E079186 (Super.Ct.No. RIF078439)
OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent2

Defendant and appellant Jerry Lee Gerardo appeals the Riverside County Superior Court’s deni a l of his petition for resentencing made pursuant to section 1172.6 of the
Penal Code. 1 We affirm. BACKGROUND In December 1997, an affair defendant had been having with a woman who was separated from her husband ended after an argument. Late r the same day, in the course of a confrontation between defendant and the husband, the husband w as killed by a single upward thrust of a knife directly to his heart. A jury convicted defendant of second degree murder (§ 187, subd. (a)) and found true an allegation that he personally used a deadly and dangerous weapon , a knife ( § 12022, subd. (b))

. The court sentenced him to a term of 15 years to life

. Defendant appealed from the judgment and we affirmed. ( People v. Gerardo ( Nov. 10, 2005 , E035485) [nonpub. opn.] .)
In May 2022, defendant filed a section 1172.6 petition. Defendant was represented by counsel at the June 2022 status conference. The People opposed the petition on the grounds defendant was the actual killer and no instructions on the felony murder rule , natural and probable consequences doctrine , or aiding an d abetting were given to the jury . Defendant’s counsel submitted . The trial court denied the petition and defendant appealed.

1 Section 1170.95 was renumbered as section 1172.6 without change in the text, effective June 30, 2022 ( Stats. 2022, ch. 58, § 10 ). For the sake of simplicity, we refer to the provision by its new numbering. All further statutory references are to the Pe nal Code.3

On appeal, defendant’s appointed appellate counsel filed an opening brief that sets
forth statements of the case and facts but d oes not present any issues for adjudication . He does suggest a potentially arguable issue: whether the trial court erred when it found defendant ineligible for relief under section 1172.6 and denied his resentencing petition.
Counsel also posits that we are required to independently review the record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende )

. Upon receipt of the brief from counsel, we sent the following notice to defendant: “Counsel for appellant has filed a brief stating no argu able issues can be found ( People v.
Wende (1979) 25 Cal.3d 436). The appellant is personally granted 30 days to file any supplemental brief deemed necessary.” Defendant did not file a supplemental brief or
letter. DISCUSSION Contrary to defendant’s claim, we are not required to conduct an independent review of the record in an appeal from a denial of a postconviction section 1172.6 petition in which appointed a ppellate counsel files a brief stating counsel was unable to find an arguable issue. ( People v. Delgadillo (2022) 14 Cal.5 th 216, 221

- 222 ( Delgadillo ); People v. Griffin (2022) 85 Cal.App.5 th 329, 333.)
As our Supreme Court explained in Delgadillo , beca use an appeal from the denial of a section 1172.6 resentencing petition does not implicate a constitutional right to counsel, the protections afforded by Wende , supra , 25 Cal.3d at pages 441

- 442 , including

an independent review of the record by Courts of A ppeal , do not apply

. ( Delgadillo ,4

supra , 14 Cal. 5th at p. 2 2 4 .) The Court agreed, however, with the parties’ suggestion that it provide guidance for counsel and courts to follow in postconviction appeals in which appointed appellate counsel finds no arguable issues. ( Id. at p. 231.) It therefore invoked its inherent supervisory powers to prescribe a basic procedural framework for use in
future section 1172.6 no

- issues appeals, leaving it to the Courts of Appeal to tailor and develop additional proce dures as they see fit. ( Id. at p p . 231

- 232 .)
The Delgadillo framework requires appointed appellate counsel who are unable to find an arguable issue to file a brief informing the appellate court of that determination , includ ing a concise recitation of the facts bearing on the denial of the 1172.6 petition. ( Delgadillo , supra , 14 Cal

. 5th at p. 231.) Upon receipt of the brief, the appellate court is to send a copy of it to the defendant along with a notice informing the defendant (i) of the right to file a supplemental letter or brief, and (ii) that the failure to file a letter or brief within 30 days may result in dismissal of the appeal. ( Id. at p p . 231

- 232.) If the defendant responds to the notice, the court is required to evaluate the arguments raise d in the supplemental brief or letter and must issue a written opinion. ( Delgadillo , supra , 14 Cal

. 5th at p. 232.) If the defendant does not respond to the court’s notice, then the court may exercise its discretion to dismiss the appeal as abandoned. ( Ibid. ) If it chooses to dismiss, it may do so with or without a written opinion. ( Ibid. ) In all cases, the Courts of Appeal have discretion to conduct an independent review of the record, whether or not defendant files a supplemental brief or letter. ( Ibid. )5

In Delgadillo , the Supreme Court suggested the appellate court is required to review the record if its notice to defendant of the right to file a supplemental brief is
deficient

. (

Delgadillo , supra , 14 Cal

. 5th at p p . 232

- 233 .) There , t he appellate court’s notice to Delgadillo advised him his counsel had filed a brief that did not raise any arguable issues and cited Wende , supra , 25 Cal.3d 436. ( Delgadillo , at pp. 232

- 233

. ) The Supreme Court found the reference directly implicated Wende and could reasonably lead Delgadillo to conclude the Court of Appeal would conduct an independent review even if he did not submit a supplemental brief. ( Id. at p. 233.) In addition, the n otice did not caution him that failure to file a supplemental brief or letter might result in dismissal of his appeal as abandoned. ( Ibid. ) The Supreme Court found the notice was “suboptimal” and independently reviewed the record to determine whether the notice’s deficiencies were harmless. ( Ibid. ) It found no error and affirmed. ( Ibid. ) Here, the notice to defendant , like the notice in Delgadillo , included a reference to Wende and did not warn defendant that we might dismiss the appeal as abandoned if he did not file a supplemental brief. Accordingly, we conducted an independent review of the record in this case and found the deficiencies in our notice to defendant were harmless because, as the actual killer of the victim, he is not entitled to any re lief under section 1172.6.6 DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

I concur: McKINSTER J.1

[ People v. Jerry Gerardo , E079186] MENETREZ, J., Dissenting. Because this is an appeal from a postjudgment order, People v. Wende (1979) 25 Cal.3d 436 ( Wende ) and Anders v. California (1967) 386 U.S. 738 do not require us to read the entire record ourselves to look for arguable grounds for reversal. ( People v. Delgadillo (2022) 14 Cal.5th 216, 228 ( Delgadillo ) .) Because defendant’s counsel filed a brief raising no issues, and defenda nt was given an opportunity to file a personal supplemental brief but declined, we may dismiss the appeal as abandoned. ( Id. at p. 232.) Although we have discretion to conduct Wende review even when it is not required ( Delgadillo , supra , 14 Cal.5th at p. 232), judicial discretion “‘is not a whimsical, uncontrolled power.’” ( Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 .) “ Independent review in Wende appeals consumes substantial judicial resources ,” and “[t] he s tate

. . . has an interest in an ‘ economical and expeditious resolution ’ of an appeal from a decision that is ‘ presumptively accurate and just. ’ ” ( Delgadillo , at p. 229.) For these reasons, routinely conducting Wende review when a no

- issue brief is filed in an appeal from a postjudgment order, in the absence of
any case - specific reason to conduct such a review, would appear to be an abuse of
discretion. For even stronger reasons, if we can determine without reading the entire record that the defendant is categorically ineligible for relief, then conducting Wende review2

would appear to be an abuse of discretion. In such a case, reading every page of the record to look for arguable grounds for reversal is futile, because we already know that
the trial cour

t’s ruling was correct. That is the case here: Defendant was convicted as the actual killer who stabbed the victim to death, so it is impossible for him to make a prima
facie case for relief under Penal Code section 1172.6. Delgadillo observed that when appointed counsel files a no

- issue brief and the court notifies the defendant of the right to file a personal supplemental brief, the notice is “suboptimal” if it cites Wende or does not state that the appeal may be dismissed as abandoned if no supplement al brief is filed. ( Delgadillo , supra , 14 Cal.5th at pp. 232

- 233.) But in a case like this one, any such deficiencies in the notice are harmless under any standard. An optimal notice would not change the fact that defendant is ineligible for
relief. The majority opinion asserts that “[i] n Delgadillo , the Supreme Court suggested the appellate court is required to review the record if its notice to defendant of the right to file a supplemental brief is deficient. ” (Maj. opn., ante , at p. 5.) That is i ncorrect. In Delgadillo , the Court of Appeal dismissed, and the Supreme Court affirmed the judgment of the Court of Appeal even though the notice was “suboptimal.” ( Delgadillo , supra , 14 Cal.5th at pp. 232, 224, 234.) I respectfully dissent because ther e is no case

- specific reason to conduct Wende review and there is a straightforward reason not to

— we know without reading the entire3

record that defendant is categorically ineligible, so reading every page of the record to look for arguable grounds for rev ersal is pointless. The appeal should be dismissed as
abandoned.

MENETREZ J.