People v. Cato CA2/2 ( 2021 )

Filed 5/4/21 P. v. Cato CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308565
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA365074)
v.
MICHELLE KIESHUA CATO,
Defendant and Appellant.
THE COURT:
On November 21, 2009, defendant Michelle Kieshua Cato
had an argument with Earley Nicolis (Nicolis) at a park. Two
days later, Nicolis returned to the park with his mother, Sheila
Zaldana (Zaldana). Defendant showed up, and Nicolis and
defendant resumed their argument. Defendant then showed
Nicolis a gun in her waistband. At some point, defendant “‘tried
to pull the trigger’” on Nicolis, but the gun did not fire. (People v.
Cato (Apr. 2, 2013, B238217) [nonpub. opn.], p. 4.) Zaldana
intervened; defendant “lunged forward toward Zaldana and
pulled the trigger,” shooting Zaldana in the head. (Ibid.)
Zaldana died from the gunshot wound. (Ibid.)
Following trial, defendant was convicted of one count of
second degree murder and one count of attempted murder. The
jury also found that defendant personally used a firearm,
personally and intentionally discharged a firearm, and personally
and intentionally discharged a firearm causing death; the jury
also found the firearm allegation to be true. The trial court
sentenced her to a total term of 57 years to life in state prison.
(People v. Cato, supra, B238217, at p. 2.)
On direct appeal, we affirmed the judgment. (People v.
Cato, supra, B238217, at p. 1.)
On July 29, 2019, defendant, in pro. per., filed a petition for
resentencing pursuant to Penal Code section 1170.95. The
People opposed her petition. The trial court appointed counsel to
represent defendant in connection with her petition for
resentencing.
At the October 8, 2019, hearing, the trial court denied
defendant’s petition on the grounds that she was the only person
involved in this case and was the actual killer.
Defendant filed a timely notice of appeal.
Appointed counsel filed a brief raising no issues and asking
this court to follow the procedures set forth in People v. Serrano
(2012) 211 Cal.App.4th 496. In addition, appointed counsel asked
that we independently review the record on appeal in order to
determine whether it contains any arguable issues.
Where appointed counsel finds no arguable issues in an
appeal seeking postjudgment relief, the appellate court is not
required to conduct an independent review for arguable issues.
(People v. Cole (2020) 52 Cal.App.5th 1023, 1039–1040, review
granted Oct. 14, 2020, S264278; see People v. Serrano, supra, 211
Cal.App.4th at p. 503.) However, we do review any contentions
2
or arguments made if the defendant files his or her own
supplemental brief or letter. (People v. Cole, supra, at p. 1039.)
On February 16, 2021, we notified defendant of her
counsel’s brief and gave her leave to file, within 30 days, her own
brief or letter setting forth any grounds for appeal, contentions,
or arguments she might wish to have considered. To date, no
such brief or letter has been filed.
Because neither defendant nor appellate counsel identified
an issue warranting reversal, we dismiss the appeal as
abandoned. (People v. Cole, supra, 52 Cal.App.5th at p. 1040;
People v. Scott (2020) 58 Cal.App.5th 1127, 1135; People v.
Figueras (2021) 61 Cal.App.5th 108, 111; but see People v. Flores
(2020) 54 Cal.App.5th 266, 269 [when appointed counsel files a
brief pursuant to People v. Wende (1979) 25 Cal.3d 436 in an
appeal from a summary denial of a Penal Code section 1170.95
petition, a Court of Appeal is not required to independently
review the entire record, but it can and should do so in the
interests of justice]; People v. Gallo (2020) 57 Cal.App.5th 594,
598 [same]; People v. Allison (2020) 55 Cal.App.5th 449, 456
[same].)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
3