People v. Shue CA5 ( 2023 )

Filed 6/12/23 P. v. Shue CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085334
Plaintiff and Respondent,
(Merced Super. Ct. No. SUF25245)
v.
JERRY SHUE, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Merced County. Steven K.
Slocum, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Smith, J. and Snauffer, J.
In 2001, appellant and defendant Jerry Shue (appellant) was convicted, after a jury
trial, of first degree premeditated murder (Pen. Code, § 187, subd. (a)),1 with the personal
use of a firearm (§ 12022.5, subd. (a)(1)), and that he personally and intentionally
discharged a firearm and inflicted great bodily injury (§§ 12022.53, subd. (d); 12022.7);
and other felonies. On direct appeal, this court affirmed the convictions, corrected
sentencing errors, and appellant’s sentence was amended to 10 years plus 80 years to life.
(People v. Shue (May 5, 2003, F039610) [nonpub. opn.].)2
In 2022, appellant filed a petition for resentencing of his first degree murder
conviction pursuant to section 1172.6.3 The People filed opposition, supported by the
jury instructions and verdict forms and requested the court take judicial notice of the
record of appellant’s jury trial.
The superior court appointed counsel, conducted a hearing, and denied the
petition, finding appellant failed to state a prima facie case because he was not convicted
on any theory of imputed malice.
On appeal, appellant’s counsel filed a brief with this court pursuant to People v.
Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo), which summarized the facts and procedural history with citations to the
record, raised no issues, and asked this court to independently review the record.
On March 24, 2023, this court sent an order to appellant stating his appellate
counsel had filed a brief under Wende that indicated no arguable issues had been
identified for appeal; previously, when an appellant filed an appeal from the denial of a
1 All further statutory references are to the Penal Code unless otherwise stated.
2 The People submitted this court’s opinion in appellant’s direct appeal as an
exhibit in support of its opposition to his petition for resentencing.
3 Appellant filed his petition under former section 1170.95, which was amended
effective January 1, 2022, and then renumbered as section 1172.6, effective June 30,
2022, without further substantive changes. (People v. Saibu (2022) 81 Cal.App.5th 709,
715, fn. 3.) As such, we refer to the subject statute by its current number throughout this
opinion.
2.
section 1172.6 petition, and counsel filed a Wende brief, this court performed an
independent review of the record to determine whether any error occurred; the California
Supreme Court determined in Delgadillo that independent Wende review is not required
for appeals from the denial of section 1172.6 petitions; in accordance with the procedures
set forth in Delgadillo, appellant had 30 days in which to file a supplemental brief or
letter raising any arguable issues he wanted this court to consider; and if we did not
receive a letter or brief within that 30-day period, this court may dismiss the appeal as
abandoned.
Since more than 30 days have elapsed, and we have received no communication
from appellant, we consider his appeal abandoned and order dismissal. (Delgadillo,
supra, 14 Cal.5th at p. 232.)
DISPOSITION
The appeal is dismissed.
3.