People v. Delgado CA3 ( 2022 )

Filed 4/27/22 P. v. Delgado CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, C094001
Plaintiff and Respondent, (Super. Ct. No. 11F01402)
v.
FRANCISCO DELGADO,
Defendant and Appellant.
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende).
In 2012, a jury found defendant Francisco Delgado guilty of three counts of first
degree murder and found true the special circumstances of discharging a firearm from a
motor vehicle, and multiple murders. Defendant appeals the denial of his petition for
resentencing pursuant to Penal Code section 1170.95. (Statutory section citations that
follow are to the Penal Code.) His attorney filed a brief stating the facts of the case and
asking this court to review the record to determine whether there are any arguable issues
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on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant did not file a
supplemental brief.
FACTS AND HISTORY OF THE PROCEEDINGS
Defendant and his codefendant Saul Isidro-Ausencio murdered three teenagers in a
drive-by shooting. (People v. Delgado et al. (March 17, 2016, C071439) [nonpub. opn.]
(Delgado)); upon defendant’s motion we incorporate this case by reference.) On the day
of the murders, three men beat up Isidro-Ausencio at the entrance gate to an apartment
complex where Isidro-Ausencio and defendant lived. (Ibid.) Isidro-Ausencio got up
from the ground and ran into his apartment. (Ibid.) He returned immediately with a rifle
and fired three or four shots at the fleeing sport-utility vehicle containing the men who
beat him. (Ibid.) Defendant and Isidro-Ausencio then jumped into a car and chased the
SUV but lost the assailants on the freeway. (Ibid.) Defendant took over driving because
Isidro-Ausencio was very angry and drove to the area where they murdered the three
teenagers. (Ibid.) Isidro-Ausencio fired three or four shots at the victims and killed
them. (Ibid.) When he was arrested, defendant confessed to what happened that day and
his role in the murders. (Ibid.)
The jury found defendant guilty of three counts of first degree murder. (§ 187,
subd (a).) (Delgado, supra, C071439.) It found true the special circumstance allegations
the murders were multiple murders, and intentional and perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at another person and persons
outside of the vehicle with the intent to inflict death. (§ 190.2, subd. (a)(3), (21).)
(Delgado, supra, C071439.) The trial court sentenced defendant to three consecutive
terms of life without the possibility of parole. (Ibid.) We affirmed his conviction on
direct appeal. (Ibid.)
After the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.), defendant
sought resentencing under section 1170.95. The trial court appointed counsel and
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directed the parties to brief whether defendant’s petition should be denied because the
jury found the special circumstances true. After briefing, the trial court found defendant
failed to state a prima facie case he was convicted under the felony-murder rule or the
natural and probable circumstances doctrine and denied the petition.
Defendant appeals from the trial court’s order denying his petition for
resentencing.
Appointed counsel for defendant asked this court to independently review the
record pursuant to Wende. Defendant was advised by counsel of the right to file a
supplemental brief within 30 days. Defendant has not filed a supplemental brief.
DISCUSSION
Review pursuant to Wende or its federal constitutional counterpart Anders v.
California (1967) 386 U.S. 738 is required only in the first appeal of right from a
criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555; Conservatorship
of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano (2012) 211 Cal.App.4th
496, 500-501.)
California’s “Wende procedure” does not apply to appeals such as this one which
is from a denial of postconviction relief. (People v. Figueras (2021) 61 Cal.App.5th 108,
111, review granted May 12, 2021, S267870; People v. Flores (2020) 54 Cal.App.5th
266, 268; People v. Cole (2020) 52 Cal.App.5th 1023, 1032, review granted Oct. 14,
2020, S264278.) This is so because this is not defendant’s first appeal as of right. (See
In re Sade C. (1996) 13 Cal.4th 952, 986 [Wende/Anders review “mandated for only one
[situation]—the indigent criminal defendant in his first appeal as of right”].)
We thus have before us a “standard” appeal from an order denying postconviction
relief in which defendant, through counsel, has stated that there are no issues that
properly can be raised on appeal. Under these circumstances, we consider the appeal
abandoned and order the appeal dismissed.
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The question whether, and to what extent, these “Wende procedures” extend to
appeals such as this one from orders denying postconviction relief is currently pending
before our Supreme Court. (See People v. Delgadillo (Nov. 18, 2020, B304441)
[nonpub. opn.], review granted Feb. 17, 2021, S266305.) Until the court has provided an
answer, appeals such as the one presently before us are considered abandoned and we
order them dismissed.
DISPOSITION
The appeal is dismissed.
HULL, Acting P. J.
We concur:
DUARTE, J.
EARL, J.
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