People v. Torres CA4/2

Opinion

Filed 3/6/24 P. v. Torres 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082067

v. (Super.Ct.No. FVI1101609)

DAVID JERRY TORRES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. John P. Vander

Feer, Judge. Affirmed.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 I.

INTRODUCTION

This is defendant and appellant David Jerry Torres’s third appeal. Defendant

presently appeals the trial court’s postjudgment order denying his request to dismiss the

firearm enhancement or to impose a lesser firearm enhancement pursuant to a newly

enacted statutory provision that grants a sentencing court the discretion to strike or

impose a lesser firearm enhancement (Senate Bill No. 620). Counsel has filed a brief

under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v.

California (1967) 386 U.S. 738 (Anders), 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. For the reasons explained below, we exercise

our discretion to conduct an independent review of the record and affirm the judgment.

(People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo).)

II.

FACTUAL AND PROCEDURAL BACKGROUND

In the evening on June 24, 2011, defendant and a cohort named Eddie approached

a group of people at a San Bernardino County apartment complex. Defendant and Eddie

displayed gang signs and said they were affiliated with the East Side Victoria criminal

street gang. Eventually, a fistfight broke out and defendant shot one of the men once in

the chest, resulting in his death. (People v. Torres (Dec. 3, 2018, E069238) [nonpub.

opn.] (Torres I).)

2 On March 10, 2017, a jury found defendant guilty of murder (Pen. Code,1 § 187,

subd. (a)), and also found true the firearm enhancement that defendant personally and

intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). The trial court

sentenced defendant to state prison for 40 years to life: 15 years to life on the murder

conviction and a consecutive 25 years to life for the firearm enhancement. (People v.

Torres (July 5, 2022, E075901) [nonpub. opn.] (Torres II).)

On December 3, 2018, this court affirmed the judgment, but ordered the matter

remanded for resentencing on the firearm enhancement “to allow the trial court to

exercise its discretion as to whether the firearm enhancement under section 12022.53,

subdivision (d), should be stricken pursuant to section 1385.” (Torres I, supra,

E069238.)

On July 26, 2019, the People filed a sentencing memorandum asserting that the

firearm enhancement should not be stricken. On that same day, the sentencing court

declined to exercise its discretion to strike the 25-year-to-life firearm enhancement.

Specifically, the court stated, “[t]he Court believes that this is not a case that justifies

striking and exercising my discretion to strike the 25-year enhancement, so that petition

to do so is denied,” and “[f]or the record, I should indicate that I think that it was proven

that Mr. Torres was indeed the actual person who did the killing—was the person who

personally discharged the firearm.” (Torres II, supra, E075901.) The court, however,

1 All future statutory references are to the Penal Code.

3 did not explicitly resentence defendant after refusing to exercise its discretion to strike

the firearm enhancement.

Defendant again appealed, and on November 10, 2021, we concluded the trial

court lacked authority to impose a lesser included firearm enhancement at the

resentencing hearing but concluded the matter should be remanded for pronouncement of

sentence as the court had failed to orally pronounce a sentence at the resentencing

hearing. (Torres II, supra, E075901.)

On January 19, 2022, the California Supreme Court granted review of this case,

and deferred briefing pending the decision in People v. Tirado (2022) 12 Cal.5th 688

(Tirado). (Torres II, supra, E075901.)

The Supreme Court subsequently issued its decision in Tirado, supra, 12 Cal.5th

688, and on April 27, 2022, transferred this matter back to us with directions to vacate

our decision filed November 10, 2021, and reconsider the cause in light of Tirado.2 We

thus vacated our November 10, 2021, decision, and allowed the parties to file

supplemental briefs. (Torres II, supra, E075901.)

2 Tirado conclusively establishes that the trial court has the discretion to strike the section 12022.53, subdivision (d) firearm enhancement and impose a lesser firearm enhancement under subdivisions (b) or (c) of that section, since by finding the greater enhancement true the jury necessarily found true facts supporting the lesser enhancements. (See Tirado, supra, 12 Cal.5th at pp. 700-702.)

4 On July 5, 2022, we vacated the sentence and remanded to the trial court for

resentencing in light of Tirado. In all other respects, we affirmed the judgment. (Torres

II, supra, E075901.)

The resentencing hearing was held on August 25, 2023. The court noted that it

had read and considered the probation officer’s report and the recommendation as to

sentencing, the People’s November 9, 2022, sentencing memorandum, defendant’s

August 24, 2023, sentencing memorandum, and the victim impact statement. Defense

counsel and the prosecutor submitted on the court’s discretion. After the court analyzed

the legislative history of Senate Bill No. 620, noted its discretion under the law and

examined the circumstances of defendant’s history, the trial court declined to exercise its

discretion to dismiss the firearm enhancement or to impose a lesser firearm enhancement.

The court imposed 15 years to life for murder and 25 years to life for the firearm

enhancement and reduced the amount of the restitution fines to $1,000. Defendant timely

appealed.

III.

DISCUSSION

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

authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a

statement of the case and a summary of the procedural background. 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

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

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

issues of whether the trial court abused its discretion by declining to dismiss the firearm

enhancement or impose a lesser firearm enhancement.

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, at pp. 224-226.) Thus, we need not examine the

entire record ourselves to look for arguable grounds for reversal. 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 pp. 230-232.) “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 a recent statutory

provision that grants a sentencing court the discretion to strike or impose a lesser firearm

enhancement as articulated in Senate Bill No. 620, 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.) In this case, independent review of

6 the record by this court is particularly appropriate. Upon receipt of appointed appellate

counsel’s no-issues brief submitted on behalf of defendant, the clerk of this court sent to

defendant a “Delgadillo notice.” That notice cited Delgadillo, and correctly informed

defendant that this court is not required to conduct an independent review of the record in

appeals from postconviction proceedings, and that failure to timely file a supplemental

brief may result in dismissal of his appeal as abandoned.

The brief filed by defendant’s counsel and served on defendant, however, does not

mention Delgadillo. It instead states, “[t]he applicable law in this case is People v.

Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738.” (Italics

added.) Counsel’s declaration avers that she wrote to defendant and informed him of her

intention to ask this court for an independent review of the record “pursuant to the

procedures that are specified in” Anders and Wende. Counsel also advised defendant of

his right to file a supplemental brief, but there is no indication in counsel’s declaration

that she explained to defendant that this court is not required to independently review the

record and that failure to file a brief might result in dismissal of his appeal as abandoned.

There is an important distinction between the procedures afforded by reviewing

under Anders/Wende and those employed pursuant to Delgadillo. Under Anders/Wende,

independent review by the reviewing court occurs automatically, irrespective of whether

a defendant files a supplemental brief; under Delgadillo, record review is discretionary

and, if the defendant does not file a supplemental brief, the reviewing court may simply

issue an order dismissing the appeal as abandoned. (Delgadillo, supra, 15 Cal.5th at

7 pp. 232-233.) When the Delgadillo procedures apply to an appeal but the reviewing

court’s notice to a defendant of the right to file a supplemental brief refers only to Anders

and Wende, the notice may be suboptimal if the defendant could reasonably have

concluded the court would independently review the record even absent a supplemental

brief. (Delgadillo, at pp. 231-232.)

In this case, this court properly sent a Delgadillo notice to defendant, but it is

reasonably probable that defendant may have been confused by, or even relied upon, the

incorrect information provided by his counsel that the Anders/Wende procedures apply to

his appeal. Under these circumstances, we believe it particularly important for this court

to conduct an independent review of the record on appeal.

An appellate court conducts a review of the entire record to determine whether the

record reveals any issues which, if resolved favorably to defendant, would result in

reversal or modification of the judgment. (Wende, supra, 25 Cal.3d at pp. 441-442;

People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders, supra, 386 U.S. at p. 744.)

We have independently reviewed the entire record for potential error and find no

arguable error that would result in a disposition more favorable to defendant.

8 IV.

DISPOSITION

The trial court’s order denying defendant’s petition to dismiss the firearm

enhancement or impose a lesser firearm enhancement is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J. We concur:

RAMIREZ P. J.

FIELDS J.