Unreported / Non-Citable
Background
In 2018, a Riverside County jury convicted Josue Alfonso Mariscal of second degree murder, assault with a firearm, and assault with a deadly weapon. The jury found that he personally discharged a firearm causing death and that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang. The original sentence totaled 40 years to life plus 11 years and eight months, although the trial court struck the gang enhancement attached to the murder count.
In Mariscal's 2024 appeal, the Court of Appeal reversed the gang-enhancement findings and directed that the prosecution be allowed to retry them under Assembly Bill 333. It also ordered a full resentencing applying Assembly Bill 124, Senate Bill 567, and People v. Tirado. At the February 11, 2025 hearing, the prosecutor elected not to retry the gang enhancements and, joined by defense counsel, requested a reduced sentence. The court imposed 15 years to life for murder, struck the firearm enhancement's punishment, and imposed concurrent three-year midterms on the assault counts.
The resentencing court also updated custody credits, left victim restitution in place, struck court fines and fees, and stayed any that could not be stricken. Mariscal filed a late notice of appeal and certificate-of-probable-cause request on June 26, 2025, explaining that he had relied on appointed counsel and asserting that his case should have been transferred to juvenile court. The trial court granted the certificate. At Mariscal's request, the abstract of judgment was corrected on April 1, 2026 to match the oral pronouncement.
The Court’s Holding
Appointed appellate counsel filed a brief under People v. Wende and Anders v. California, presenting a statement of the case and requesting an independent review of the record. Counsel identified two potentially arguable matters: whether the appeal was timely because Mariscal had not been advised of his appellate rights and the trial court granted a certificate of probable cause, and whether the trial court erred during resentencing. The Court of Appeal offered Mariscal an opportunity to submit a personal supplemental brief, but he did not do so.
Following the procedure required by People v. Kelly, the court independently reviewed the record and found no arguable issues. It therefore affirmed the judgment. The opinion did not separately resolve the potential juvenile-transfer assertion or identify any resentencing error; its stated conclusion was that the independent review disclosed no issue warranting appellate relief.
The affirmance leaves the reduced aggregate term of 15 years to life in place, together with the concurrent assault sentences and the trial court's orders concerning credits, restitution, fines, and fees. The opinion was filed October 22, 2026, and designated not to be published in the official reports.
Key Takeaways
- The Court of Appeal independently reviewed the entire record after appointed counsel filed a Wende and Anders brief.
- The court found no arguable issues concerning the appeal's timeliness or the resentencing proceedings and affirmed the judgment.
- Mariscal's aggregate sentence was reduced at resentencing from 40 years to life plus additional time to 15 years to life.
- The prosecution declined to retry the reversed gang enhancements, and the trial court struck the firearm enhancement's punishment.
- The opinion does not establish a published legal precedent because it is expressly designated not for publication.
Why It Matters
The decision concludes Mariscal's challenge to the full resentencing ordered in his earlier appeal while preserving the substantially reduced sentence imposed on remand. It illustrates the appellate court's independent-review obligation when appointed counsel identifies potential issues but does not present a conventional merits argument.
The ruling also confirms the practical importance of the remand instructions: the prosecution did not retry the gang allegations, the firearm enhancement's punishment was struck, and the assault terms were made concurrent. The court's affirmance was based on its finding of no arguable issues rather than a newly developed rule governing resentencing or late appeals.