People v. Morales CA4/2

Opinion

Filed 9/26/23 P. v. Morales 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E080798

v. (Super.Ct.No. RIF1603611)

JOSEPH WILLIAM MORALES, OPINION

Defendant and Appellant.

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

Dismissed.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant Joseph William Morales appeals from the trial court’s

order denying his petition for resentencing pursuant to Penal Code1 former section

1170.95 (now renumbered to section 1172.6). For the reasons set forth post, we dismiss

the appeal.

STATEMENT OF THE CASE

On March 26, 2019, a jury convicted defendant of second degree murder under

section 187, subdivision (a), and found true that defendant personally used a knife to

commit the murder under section 12022, subdivision (b)(1).2

On April 24, 2019, the trial court sentenced defendant as a third-strike offender to

a term of 45 years to life for the murder conviction and one year for the knife use

enhancement, for a total of 46 years to life.

Defendant appealed from his underlying case. On June 17, 2020, in case No.

E072628, we affirmed defendant’s conviction for second degree murder. (People v.

Morales (June 17, 2020, E072628) [nonpub. opn.] 2020 Cal.App.Unpub.LEXIS 3763.)

We found that there was substantial evidence to the jury’s finding that defendant used a

deadly weapon when attacking the victim. (Id. at *9-*10.)

On September 19, 2022, defendant filed a petition for resentencing under section

1172.6. The trial court appointed counsel to represent defendant.

1 All further statutory references are to the Penal Code unless otherwise specified. 2 The jury also found defendant guilty of four other counts. These counts are not at issue on appeal.

2 At a prima facie hearing on February 17, 2023, the prosecutor stated that the jury

instructions from the underlying case were sent to both counsel on December 13, 2022.

The prosecutor then stated that “[n]o instructions regarding aiding and abetting, natural

and probable consequences, or felony murder were given to the defendant’s jury. No

theory under which malice was imputed to him by anyone.” In response, defense counsel

stated: “I have read those documents, and I will confirm what [the prosecutor said. And I

will submit.” The trial court denied defendant’s petition.

On March 1, 2023, defendant filed a notice of appeal.

DISCUSSION

Counsel has filed a supplemental brief under the authorities of People v. Wende

(1979) 25 Cal.3d 436, Anders v. California (1967) 386 U.S. 739, and People v.

Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). In the brief, pursuant to Anders, appellate

counsel has identified the following issue to assist the court in its search of the record for

error:

1. “Did the trial court err in denying the petition for resentencing at the prima

facie stage of review in view of the fact that the prosecutor did not file a response

pursuant to Penal Code section 1172.6, subdivision (a)?”

On June 7, 2023, we sent notice to defendant regarding the filing of a Delgadillo

brief, as follows: “Counsel for appellant has filed a brief stating no arguable issues can

be found. Because this is an appeal from the denial of a post-conviction proceeding, this

court is not required to conduct an independent review of the record but may do so in its

discretion. (People v. Delgadillo (2022) 14 Ca1.5th 216 [302 Ca1.Rptr. 153, 160-164];

3 People v. Serrano (2012) 211 Ca1.App.4th 496.) The appellant is personally granted 30

days to file any supplemental brief deemed necessary. If appellant files a supplemental

brief, this court will evaluate the specific arguments presented in that brief in its opinion.

(Delgadillo, supra, 14 Ca1.5th 216 [].) Failure to timely file a supplemental brief may

result in the dismissal of the appeal as abandoned.”

More than 30 days have elapsed, and we have received no communication from

defendant.

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 consider

defendant’s appeal abandoned and order the appeal dismissed. (Delgadillo, supra, 14

Cal.5th at p. 232.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER J.

We concur:

RAMIREZ P. J.

McKINSTER J.