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Filed 4/3/24 P. v. Guevara CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

JUAN GUEVARA,

Defendant and Appellant.

E082119

(Super. Ct. No. BLF1600104)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. 

Dismissed.

Larenda R. Delaini, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.

I.

INTRODUCTION

Defendant and appellant Juan Guevara appeals the trial court’s postjudgment order 

denying his petition for resentencing pursuant to Penal Code1sections 1172.7 and 

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 Unless otherwise indicated, all future statutory references are to the Penal Code.
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1172.75. Counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 

Cal.5th 216 (Delgadillo), requesting this court to conduct an independent review of the 

record. In addition, defendant has had an opportunity to file a supplemental brief with 

this court and has not done so. Because defendant’s counsel filed a brief raising no issues

and defendant was notified that failure to timely file a supplemental brief may result in 

the dismissal of the appeal as abandoned and was given an opportunity to file a personal 

supplemental brief but failed to do so, we dismiss the appeal as abandoned.

II.

PROCEDURAL BACKGROUND

On June 21, 2016, a felony complaint was filed charging defendant with battery on 

a correctional officer (§ 4501.5, subd. (a); count 1) and resisting arrest by means of 

threats and violence (§ 69; count 2). The complaint further alleged that defendant had 

suffered two prior serious or violent strike convictions (§§ 667, subds. (c) & (e)(1), 

1170.12, subd. (c)(1)) and two prior prison terms (§ 667.5, subd. (b)).

On December 1, 2016, pursuant to a negotiated plea agreement, defendant pleaded 

guilty to count 1, battery on a correctional officer, and admitted that he had suffered one 

prior strike conviction and one prior prison term. In return, the remaining allegations 

were dismissed, and defendant was sentenced to a stipulated term of five years in state

prison as follows: the low term of two years on count 1, doubled to four years due to the

prior strike conviction, plus a consecutive term of one year for the prior prison term. The 

trial court imposed a restitution fine (§ 1202.4) in the amount of $300, a $300 stayed 
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parole revocation fine (§ 1202.45), a $40 court operations fee (§ 1465.8), and a $30

criminal conviction assessment fee (Gov. Code, § 70373).

On June 26, 2023, pursuant to section 1172.75, subdivision (c), the trial court

resentenced defendant and ordered stricken the consecutive one-year sentence imposed

for the prior prison term (§ 667.5, subd. (b)). The court ordered that other portions of the

sentence remained “in full force and effect. . . without prejudice,” with a further hearing

scheduled in September 2023.

On June 28, 2023, defendant filed a brief pursuant to sections 1172.7 and 1172.75, 

seeking a full resentencing hearing on the basis that defendant was no longer a danger to 

public safety and thus his incarceration was contrary to the interests of justice. Defendant 

asserted that he had completed a substance abuse disorder program and anger 

management classes, in addition to finding religion, staying out of trouble and working 

on his GED. Defendant also noted that the underlying offense was nonviolent.

On September 5, 2023, the People filed an opposition brief contending that 

defendant was ineligible for further relief because he had resolved his underlying matter 

by plea bargain. Alternatively, the People argued that defendant posed a danger to public 

safety and that amendments to section 1385, subdivision (c) do not apply to prior strike 

convictions.

A hearing on defendant’s petition was held on September 11, 2023. At the start of 

the hearing, defense counsel advised the trial court that he had authority to conduct the 

hearing in defendant’s absence and waived defendant’s appearance. Defense counsel 
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thereafter argued that the court should strike the prior strike conviction in light of section 

1385, subdivision (c). In support, counsel noted that defendant had some certificates of 

accomplishments and that the current offense of battery on a non-prisoner was 

nonviolent. The prosecutor first noted that the trial court did not have the authority to 

reach the substantive issue since defendant had pleaded guilty. And if the court 

addressed the merits, the prosecutor urged that defendant was not a candidate for further 

resentencing relief based on his criminal history and that section 1385, subdivision (c) did 

not apply to strike convictions. The prosecutor noted that defendant had several juvenile 

adjudications, PRCS and parole violations, two strike convictions, and prior prison 

offenses.

After noting that it believed sections 1172.7 and 1172.75 applied to plea bargain 

cases, the trial court denied defendant’s request to dismiss his prior strike conviction 

pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and declined to 

apply section 1385, subdivision (c), to the prior strike conviction allegation. The trial 

court explained that “within a matter of mere months” of being sentenced to state prison

for residential burglary, defendant assaulted a correctional officer. In addition, only 14 

months before the residential burglary conviction, defendant was convicted of attempted 

robbery, another strike. “Given the closeness in time of the two strikes to the instant 

offense,” the trial court believed defendant “was essentially a poster child for recidivist 

treatment” and that defendant “was clearly on a recidivist trajectory.” The court 

acknowledged that defendant had accomplished much while incarcerated, but believed 
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the accomplishments were insufficient to take defendant outside of the spirit of the Three

Strikes Law. Lastly, citing People v. Burke (2023) 89 Cal.App.5th 237, the court 

determined that it could not dismiss the prior strike conviction pursuant to section 1385, 

subdivision (c), because the Three Strikes Law is an alternate sentencing scheme and not 

an enhancement.

The court thereafter struck the one-year prior prison term and adopted all of the 

other prior “sentencing decisions with the exception of the fines and fees.” The court 

reimposed the above-noted restitution fines and fees, but struck “[a]ll other fines and 

fees” “as no longer authorized by law.” The trial court awarded defendant post-sentence 

credits of 2,475 days. Defendant timely appealed.

III.

DISCUSSION

After defendant appealed, appointed appellate counsel filed a brief under the 

authority of Delgadillo, supra, 14 Cal.5th 216, setting forth a statement of the case and a 

summary of the procedural background. (See People v. Wende (1979) 25 Cal.3d 436 

(Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) Counsel considered 

potential issues on appeal but found no specific arguments as grounds for relief, and 

requests that we exercise our discretion and independently examine the appellate record 

for any arguable issues. Under Anders, which requires “a brief referring to anything in 

the record that might arguably support the appeal” (Anders, supra, at p. 744), counsel 

raises the issues of whether the trial court improperly conducted the resentencing hearing 
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in defendant’s absence; whether the court abused its discretion by declining to dismiss 

the prior strike conviction pursuant to section 1385, subdivision (c); and whether the trial 

court abused its discretion by declining to dismiss the prior strike conviction pursuant to 

Romero.

We offered defendant an opportunity to file a personal supplemental brief, and he 

has not done so.

In Delgadillo, supra, 14 Cal.5th 216, the California Supreme Court held that 

Wende and Anders procedures do not apply in appeals from the denial of a section 1172.6 

postjudgment petition. (Delgadillo, supra, at pp. 224-226.) Thus, we need not examine 

the entire record ourselves to look for arguable grounds for reversal. (Id. at p. 228.)

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.) “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.’” (Id. at p. 229.) While this postjudgment appeal involves an appeal from recent 

statutory provisions pursuant to sections 1172.7 and 1172.75, Delgadillo’s reasoning 

equally applies here.

We, however, have discretion to conduct Wende review even when it is not 

required. (Delgadillo, supra, 14 Cal.5th at p. 232.) This case does not call for us to 

exercise our discretion to independently examine the record for arguable issues, and 
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decline to exercise our discretion to independently examine the record. Accordingly, we 

dismiss the appeal as abandoned.

IV.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

FIELDS

J.