Filed 1/26/23 P. v. Gonzalez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E079541
v. (Super.Ct.No. RIF130512)
JOSE LUIS GONZALEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Judge. Dismissed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Jose Luis Gonzalez appeals from the denial of his petition to vacate his attempted
murder conviction. (See Pen. Code, § 1172.6.)1 His appointed appellate counsel could
1 All further statutory citations are to the Penal Code.
The petition cited former section 1170.95. (Enacted by Stats. 2018, ch. 1015, § 4,
amended by Stats. 2021, ch. 551, § 2.) Fifteen days before it was filed, however, section
[footnote continued on next page]
1
not identify any arguable issue. We gave him notice of that fact, and we gave him an
opportunity to file a personal supplemental brief, but he has not done so. Admittedly,
under the Supreme Court’s recent decision in People v. Delgadillo (2022) 14 Cal.5th 216
(Delgadillo), our notice was “suboptimal.” (Id. at pp. 222, 232.) Accordingly, out of an
excess of caution, we have carried out an independent review of the record. However,
we, too, cannot identify any arguable issue. Hence, we will dismiss.
I
STATEMENT OF FACTS
According to our opinion in petitioner’s direct appeal, in 2006, petitioner and two
friends confronted the victim and told him to leave a certain woman alone. When the
victim said he was going to call the police, petitioner shot him in the leg, said he was
going to kill him, and then shot him in the neck. (People v. Gonzalez (2008) 2008
Cal.App. Unpub. LEXIS 8825 at pp. *3-*4 [nonpub. opn.].) Petitioner admitted shooting
the victim but claimed that the first shot was self-defense and/or defense of others and the
second shot was an accident. (Id. at pp. *8, *10.)
II
STATEMENT OF THE CASE
In 2007, in a jury trial, petitioner was found guilty of willful, deliberate, and
premeditated attempted murder (§§ 187, subd. (a), 664, subd. (a)), with an enhancement
1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58,
§ 10.)
2
for causing great bodily injury by personally and intentionally discharging a firearm
(§ 12022.53, subd. (d)); and assault with a firearm (§ 245, subd. (a)(2)), with a personal
firearm use enhancement (§ 12022.5, subd. (a)) and a great bodily injury enhancement
(§ 12022.7, subd. (a)). He was sentenced to a total of 32 years to life.
In 2008, we affirmed the judgment with respect to the conviction but remanded for
resentencing. (People v. Gonzalez, supra, 2008 Cal.App. Unpub. LEXIS 8825 at p. *25.)
On remand, petitioner was resentenced to life with the possibility of parole plus 25 years
to life.
In July 2022, petitioner filed a petition to vacate his attempted murder conviction
under section 1172.6. The trial court appointed counsel.
At a status conference, the prosecution moved to summarily deny the petition:
“[PROSECUTOR]: . . . I sent [defense counsel] the opinion and instructions.
They are both in imaging. The defendant testified at trial that he shot the victim in self-
defense. There’s no instructions to the jury regarding aiding and abetting, natural and
probable consequences, and felony murder. He’s statutorily ineligible. . . .
“[DEFENSE COUNSEL]: Counsel is accurate. I’ve confirmed everything. I
would submit.”
The trial court ruled that petitioner was statutorily ineligible for relief, and it
therefore summarily denied the petition.
3
III
DISCUSSION
Petitioner’s appointed appellate counsel has filed a “no-issue” brief, purportedly
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We offered petitioner an
opportunity to file a personal supplemental brief, but he has not done so.
In an appeal from the denial of a section 1172.6 petition, Wende does not apply;
we are not required to independently review the record in search of error. (Delgadillo,
supra, 14 Cal.5th at pp. 226-231.) Rather, if the petitioner has declined to file a personal
supplemental brief, the appeal should be dismissed as abandoned. (Id. at pp. 222, 232.)
Here, however, as in Delgadillo itself, the notice to petitioner was “suboptimal” in
two respects — “it indicated that the Wende procedures would apply when they did not,
and it did not inform [petitioner] that the appeal would be dismissed as abandoned if no
supplemental brief or letter was filed.” (Delgadillo, supra, 14 Cal.5th at p. 222.)
Accordingly, also as in Delgadillo, we review the record independently. (Id. at p. 233.)
We conclude that the trial court correctly found that petitioner was statutorily ineligible
because he was not prosecuted on either a natural and probable consequences theory or a
felony murder theory. (§§ 188, subd. (a)(3), 189, subd. (e), 1172.6, subd. (d)(3).)
Therefore, any defect in our notice was harmless error.
Appellate counsel indicates that he considered two issues.
4
First, did the trial court err by finding that petitioner was not prosecuted on either a
natural and probable consequences theory or a felony murder theory? No, because both
counsel stipulated, after a review of the record, that he was not.
Second, did appointed counsel render ineffective assistance by stipulating that
petitioner was not prosecuted on either a natural and probable consequences theory or a
felony murder theory? No, because it appears from our prior opinion that he was the
shooter. There is no contrary indication in the record. Hence, counsel’s stipulation was
not ineffective assistance, because (1) it did not fall below an objective standard of
reasonableness (see People v. Lewis (2021) 11 Cal.5th 952, 968 [counsel may suggest
that meritless petition be withdrawn]), and (2) it did not adversely affect the outcome of
the proceeding. (See generally People v. Ng (2022) 13 Cal.5th 448, 522.)
We have also considered a third issue: Did the trial court err by denying the
petition summarily, without requiring the prosecution to file a response and without
allowing petitioner to file a reply? (See § 1172.6, subd. (c).) Not allowing the
prosecution to file a response could not have prejudiced petitioner. And, again, because
it appears that petitioner was the shooter, not allowing him to file a reply likewise could
not have prejudiced him.
We have found no other conceivable — much less arguable — issue.
5
IV
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.
6