P. v. Pena

Filed 11/19/18 P. v. Pena CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
GILBERTO JESUS PENA
Defendant and Appellant.
G056070
(Super. Ct. No. 10NF0523)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
A jury convicted Gilberto Jesus Pena of five counts, including street
terrorism, and found true gang and other enhancements. Pena appealed. In People v.
Pena (Aug. 29, 2017, G053303) [nonpub. opn.] (Pena), this court held there was

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insufficient evidence the alleged gang was a criminal street gang as statutorily defined.1
We reversed the conviction for street terrorism (Pen. Code, § 186.22, subd. (a)), and the
street terrorism enhancements (Pen. Code, § 186.22, subd. (b)(1)). We remanded the
case for resentencing. (Pena, supra, G053303.) At the resentencing hearing, the trial
court sentenced Pena to serve a total of 25 years to life in prison with a minimum of
seven years. Pena appeals from this judgment.
We appointed counsel to represent Pena on appeal. Counsel filed a brief
that set forth the facts of the case. Counsel did not argue against her client but advised
the court she found no issues to argue on Pena’s behalf.
Counsel filed a brief following the procedures outlined in People v. Wende
(1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that
sets forth a summary of proceedings and facts but raises no specific issues. Under these
circumstances, the court must conduct an independent review of the entire record. When
the appellant himself raises specific issues in a Wende proceeding, we must expressly
address them in our opinion and explain why they fail. (People v. Kelly (2006)
40 Cal.4th 106, 110, 120, 124.)
Counsel did not provide the court with any information as to issues that
might arguably support an appeal pursuant to Anders v. California (1967) 386 U.S. 738
(Anders). We gave Pena 30 days to file written argument on his own behalf. That time
has passed, and Pena has not filed any written argument.
We have reviewed the record in accordance with our obligations under
Wende. We found no arguable issues on appeal. We affirm the judgment.
FACTS
On remand, the trial court sentenced Pena to 25 years to life for conspiracy
to commit murder, three years for assault with a deadly weapon (stayed), seven years to
1
A full recitation of the underling facts may be found in Pena, supra,
G053303.

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life for attempted murder with premeditation (concurrent),2
and three years for assault
with a deadly weapon count (stayed). The total sentence was 25 years to life with a
minimum of seven years.
Upon review of the abstract of judgment issued after resentencing, appellate
counsel noted two clerical errors. In a letter to the trial court, counsel requested
correction of those errors and issuance of a revised abstract of judgment. In response, the
trial court ordered correction of the errors and issued a revised abstract of judgment
reflecting the corrections.
DISCUSSION
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and
Anders, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue.
DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
2
The prosecution argued the sentences for conspiracy to commit murder and
attempted murder with premeditation should be imposed as consecutive sentences. The
court rejected that argument and ordered the sentences be served concurrently.

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