Full Opinion

Filed 10/28/26 P. v. DePonte CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) THE PEOPLE, C103735 Plaintiff and Respondent, (Super. Ct. No. 00F08280) v. DAVID DEPONTE, Defendant and Appellant. In 2001, a jury found defendant David DePonte guilty of murder and found true the allegation that defendant personally and intentionally discharged a firearm causing great bodily injury. In 2023, defendant filed a petition for resentencing pursuant to Penal Code1 section 1172.6.2 After an evidentiary hearing, the trial court found defendant was ineligible for relief because he was the actual killer. 1 Undesignated statutory references are to the Penal Code. 2 Effective June 30, 2022, former section 1170.95 was recodified without substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his petition under former section 1170.95, but we will refer to the current section 1172.6 throughout this opinion. 1 Appointed counsel for defendant asked this court to independently review the record pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) to determine whether there are any arguable issues on appeal. After considering the arguments raised in defendant’s supplemental brief, we will affirm the trial court’s order. BACKGROUND A jury convicted defendant of murder (§ 187, subd. (a)) and found true defendant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). The trial court sentenced defendant to 50 years to life in prison. This court affirmed the judgment in 2003, and the judgment became final in May 2004. In 2023, defendant filed a petition for resentencing under section 1172.6. After finding defendant made a prima facie case, the trial court issued an order to show cause and held an evidentiary hearing. Defendant testified at the hearing and denied any involvement in the murder, claiming he was in his apartment during the time of the shooting. The People argued the trial testimony precluded defendant from resentencing and submitted trial transcripts as evidence. The trial testimony revealed: Defendant purchased a counterfeit $100 bill with his friend M.G.3 and later unsuccessfully attempted to pass the $100 bill at a convenience store, losing the bill. Defendant told M.G. that the “son of a bitch” store clerk confiscated the counterfeit money. On October 1, 2000, around 10:00 p.m., K.L., who lived in the defendant’s apartment complex, went to defendant’s apartment to have a beer and smoke marijuana with defendant. At about 10:45 p.m., defendant made a phone call and told K.L. he had 3 To protect their privacy, we will refer to the witnesses by their initials. (Cal. Rules of Court, rule 8.90(b)(10).) 2 to “go take care of it.” Before leaving, defendant mentioned to K.L. that he would use a revolver because it would not leave any shell casings behind. Defendant’s girlfriend, T.T., who was also at defendant’s apartment during that time, testified defendant left the apartment around 10:30 or 10:45 p.m. and was gone for about 30 minutes. M.G. testified that he and J.M. met defendant that night on the porch of J.M.’s apartment. Twenty minutes later, they walked over toward a fence near the apartment complex where defendant knew the store clerk would be walking home. As the victim walked by on the opposite side of the street, defendant went through an opening in the fence and ran toward him. The two men argued and began fighting, the defendant then shot the victim in the head with a black revolver. Defendant, who was wearing a black hooded shirt, ran back to the apartments. A witness who lived in the apartment complex testified that at 11:00 p.m., he heard some yelling and looked out his window. He saw two men scuffling. One of them, who was wearing dark clothing, shot the other man and ran across the street toward the apartments. T.T. testified defendant returned to his apartment, washed something in the sink, and took a shower. He later told K.L. that he took a shower to clean off the gunpowder. Defendant also told K.L., “ ‘I got him,’ ” made a motion mimicking shooting a person in the head, and described how he killed the victim. The trial court took the matter under submission and issued a written order denying defendant’s petition. The court found defendant was the actual killer based on the trial transcript and defendant’s testimony at the section 1172.6 hearing. Defendant timely appealed. 3 DISCUSSION Defendant’s appointed counsel asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (Delgadillo, supra, 14 Cal.5th at pp. 231-232.) Defendant was advised by counsel and this court of his right to file a supplemental brief within 30 days from the date the opening brief was filed. Defendant filed a supplemental brief. In People v. Wende (1979) 25 Cal.3d 436, our Supreme Court held that “Courts of Appeal must conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal [that] raises no specific issues or describes the appeal as frivolous.” (Delgadillo, supra, 14 Cal.5th at p. 221.) The Wende procedure applies “to the first appeal as of right and is compelled by the constitutional right to counsel under the Fourteenth Amendment of the United States Constitution.” (Ibid.) In Delgadillo, our Supreme Court considered whether the Wende process applies to a trial court’s order denying a petition for postconviction relief under section 1172.6 and concluded it is not required. (Delgadillo, supra, 14 Cal.5th at pp. 221-222.) Our Supreme Court laid out applicable procedures for such cases, saying, where a defendant has filed a supplemental brief, “the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion,” but the filing of a supplemental brief alone does not compel the court to “independent[ly] review … the entire record to identify unraised issues,” although it may exercise its discretion to do so. (Id. at p. 232.) 4 I Defendant claims the trial court failed to consider exculpatory evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 and that defendant was a youth when he committed the crime. Defendant further contends there was evidence favorable to defendant that the jury did not hear. Defendant’s handwritten supplemental brief is unclear, and it is difficult to discern the relevant legal arguments. Defendant’s contentions also are not supported by reasoned argument or legal authority; hence this court may treat the argument as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Additionally, it is ambiguous what defendant means by “considering youth factors.” It could be seen as defendant claiming the trial court did not consider his age at the section 1172.6 hearing, but the court expressly considered his age and was “not persuaded that [defendant] lacked the experience, perspective or judgment to preclude a finding that he acted with implied malice.” From context, this contention is found between two other contentions that relate to alleged trial court error. As such, this contention appears to be related to the section 1170, subdivision (b)(6)(B) requirement that the trial court must consider a defendant’s youth at sentencing. These contentions do not relate to the trial court’s ruling on defendant’s section 1172.6 petition. Nor does defendant challenge the substantive reasons for the denial of his petition. When a contention on appeal is “wholly unrelated to the denial of [a] section 1172.6 petition for resentencing” from which the appeal is taken, the contention is “not cognizable.” (People v. Hernandez (2024) 103 Cal.App.5th 1111, 1117; People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial error”].) 5 II Defendant also claims the trial court failed to hold a “Franklin4 hearing or a Romero5 hearing” or exercise its discretion under “Senate Bill [No.] 483,” and “Senate Bill [No.] 81.” We conclude defendant is ineligible for relief under Franklin and Romero, and these statutes cannot be applied to the current appeal. A. People v. Franklin Defendant is not yet eligible for a youth offender parole hearing. A person, like defendant, who was convicted of murder when he was “25 years of age or younger” and is serving a term of 50 years to life in prison becomes “eligible for release on parole at a youth offender parole hearing [on the] person’s 25th year of incarceration.” (§ 3051, subd. (b)(3).) Defendant was sentenced on December 12, 2001, and therefore is not yet eligible for relief pursuant to section 3051 or Franklin. (§ 3051, subd. (b)(3).) B. People v. Romero The trial court lacked jurisdiction to resentence defendant under Romero. The general rule is that where, as here, the execution of a sentence has commenced, and the judgment is final, the trial court is generally “deprived of jurisdiction to resentence” a criminal defendant. (People v. Karaman (1992) 4 Cal.4th 335, 344, citing Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) There are limited exceptions to this general rule. For instance, the superior court retains jurisdiction to resentence a defendant where “specific statutory avenues” authorize defendants to seek resentencing. (People v. King (2022) 77 Cal.App.5th 629, 637.) Thus, to obtain resentencing on a final judgment, a defendant must proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75) or file a petition for writ of habeas 4 People v. Franklin (2016) 63 Cal.4th 261, 268. 5 People v. Superior Court (Romero) (1996) 13 Cal.4th 497. 6 corpus (see People v. Picklesimer (2010) 48 Cal.4th 330, 339). (People v. Hernandez, supra, 103 Cal.App.5th at p. 1118.) Here, the trial court denied defendant’s section 1172.6 petition and therefore it did not have jurisdiction to hear a motion under Romero. (People v. Henderson (2022) 14 Cal.5th 34, 56.) C. Senate Bill No. 483 Effective January 1, 2022, Senate Bill No. 483 (2021-2022 Reg. Sess.) added former section 1171.1 to the Penal Code, which provided: “Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.” (Former § 1171.1, subd. (a).) The trial court did not impose a prior prison term enhancement in this case, as such Senate Bill No. 483 is not applicable. D. Senate Bill No. 81 The trial court did not have jurisdiction to resentence defendant under Senate Bill No. 81 (2021-2022 Reg. Sess.) because it denied defendant’s section 1172.6 petition. (People v. Hernandez, supra, 103 Cal.App.5th at p. 1118; People v. Henderson, supra, 14 Cal.5th 34, 56) To the extent defendant seeks the retroactive application of a later- enacted statute to his sentence—Senate Bill No. 81 (Stats. 2021, ch. 721)—the rule for retroactivity is that the judgment must not be final to apply a retroactive statute to that case. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342 [For “retroactive application of an amendment to a criminal statute, the finality of a judgment is extended until the time has passed for petitioning for a writ of certiorari in the United States Supreme Court”].) Defendant’s judgment has been final since 2004, when the time expired for him to bring a petition before the United States Supreme Court, and long before any of these changes in the law went into effect. (Cal. Rules of Court, rule 8.366; U.S. Supreme Ct. Rules, rule 13(1) [a petition for a writ of certiorari “is timely when it is filed with the 7 Clerk within 90 days after entry of the order denying discretionary review”].) Thus, defendant is not eligible for the retroactive application of Senate Bill No. 81. DISPOSITION The order denying defendant’s petition for resentencing is affirmed. \s\ KRAUSE, J. We concur: \s\ RENNER, Acting P. J. \s\ MESIWALA, J. 8