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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 Respondent,

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 Respondent
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Defendant and appellant Jerry Lee Gerardo appeals the Riverside County Superior 

Court’s denial 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. Later the same day, in the course 

of a confrontation between defendant and the husband, the husband was 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 and 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 Penal 

Code. 
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On appeal, defendant’s appointed appellate counsel filed an opening brief that sets 

forth statements of the case and facts but does 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 arguable 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 appellate counsel files a brief stating counsel was unable to 

find an arguable issue. (People v. Delgadillo (2022) 14 Cal.5th 216, 221-222

(Delgadillo); People v. Griffin (2022) 85 Cal.App.5th 329, 333.) 

As our Supreme Court explained in Delgadillo, because 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 Appeal, do not apply. (Delgadillo,
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supra, 14 Cal.5th at p. 224.) 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 procedures as they see fit. (Id. at pp. 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,

including 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 pp. 231-232.) 

If the defendant responds to the notice, the court is required to evaluate the 

arguments raised 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.) 
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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 pp. 232-233.) There, the 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 notice 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 relief under 

section 1172.6. 
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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

I concur:

McKINSTER

J.
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[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 defendant 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 state . . . 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 review 
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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 court’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 supplemental 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 incorrect. 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 there is no case-specific reason to conduct Wende

review and there is a straightforward reason not to—we know without reading the entire 
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record that defendant is categorically ineligible, so reading every page of the record to 

look for arguable grounds for reversal is pointless. The appeal should be dismissed as 

abandoned.

MENETREZ

J.