People v. Gonzalez CA2/3
B310161
| Cal. Ct. App. | Sep 23, 2021Background
- In 2013 Douglas Gonzalez was convicted of second degree robbery and admitted a prior serious and violent felony (robbery); he was sentenced to an aggregate 15 years (upper term doubled for a strike plus a five‑year serious felony enhancement).
- The conviction was affirmed on appeal and the judgment became final before January 1, 2019.
- Senate Bill No. 1393 (effective Jan. 1, 2019) removed statutory prohibitions on striking or dismissing a five‑year prior serious felony enhancement, allowing courts discretion to strike such enhancements.
- On October 14, 2020 Gonzalez filed a habeas petition seeking resentencing under SB 1393 so the trial court could consider striking his five‑year enhancement; the trial court denied the petition on December 2, 2020, concluding SB 1393 was not retroactive and, in any event, Gonzalez had robbed a vulnerable minor and had a prior attempted robbery.
- Gonzalez appealed; appointed counsel filed a brief asserting no arguable issues and asked the court to follow Serrano/Wende procedures; Gonzalez did not file a supplemental brief.
- The Court of Appeal reviewed the record, concluded the habeas denial was not appealable and, alternatively, found no error on the merits; the appeal was dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the superior court's denial of a habeas petition seeking resentencing under SB 1393 appealable? | Denial of habeas petition is not appealable. | Gonzalez appealed the denial. | Denial is not appealable (In re Clark); appeal dismissed. |
| Does SB 1393 apply retroactively to judgments final before Jan 1, 2019? | SB 1393 is not retroactive to Gonzalez’s final judgment. | Gonzalez sought retroactive application to obtain resentencing. | Court agreed SB 1393 does not afford relief to Gonzalez. |
| Even if SB 1393 applied, should the trial court have struck the five‑year serious‑felony enhancement? | Trial court would not have stricken enhancement given the robbery of a vulnerable minor and prior attempted robbery. | Gonzalez argued the court should exercise discretion to strike the enhancement. | Court upheld trial court’s view that relief would not be warranted on these facts. |
| Did appointed counsel properly handle the appeal after finding no arguable issues (procedural Wende/Serrano/Cole question)? | Counsel complied with duties and no arguable issues exist; review by the court of appeal is appropriate. | Gonzalez did not submit a supplemental brief raising issues. | Court conducted independent review, found no arguable issues, and dismissed the appeal. |
Key Cases Cited
- In re Clark, 5 Cal.4th 750 (1993) (order denying habeas corpus petition is not appealable)
- People v. Serrano, 211 Cal.App.4th 496 (2012) (procedures for appellate review when counsel finds no arguable issues in postconviction appeals)
- People v. Wende, 25 Cal.3d 436 (1979) (appointed counsel’s duties when no arguable appeal issues exist)
- People v. Cole, 52 Cal.App.5th 1023 (2020) (discusses appropriate appellate procedures for orders denying postconviction relief)
- People v. Kelly, 40 Cal.4th 106 (2006) (standards for appellate counsel’s compliance when no arguable issues are found)