Unreported / Non-Citable
Background
David DePonte was convicted by a jury in 2001 of murder, with a true finding that he personally and intentionally discharged a firearm causing great bodily injury. The trial court sentenced him to 50 years to life in prison. This court affirmed the judgment in 2003, and the judgment became final in May 2004. In 2023, DePonte filed a petition for resentencing under former Penal Code section 1170.95, which was recodified without substantive change as section 1172.6. After finding that DePonte made a prima facie case, the trial court issued an order to show cause and held an evidentiary hearing.
DePonte testified at the hearing and denied any involvement in the murder, claiming he was in his apartment during the shooting. The People argued that the trial testimony precluded resentencing and submitted trial transcripts, which showed that DePonte discussed using a revolver, confronted and shot the victim, and later described the killing. The trial court took the matter under submission and issued a written order denying the petition, finding that DePonte was the actual killer and therefore ineligible for relief. DePonte timely appealed; appointed counsel asked the court to review the record under People v. Delgadillo, and DePonte filed a handwritten supplemental brief.
The Court’s Holding
The Court of Appeal explained that Delgadillo does not require a Wende-style independent review of the entire record in an appeal from denial of a section 1172.6 petition. Because DePonte filed a supplemental brief, the court was required to evaluate his specific arguments and issue a written opinion, which it did. The court found those arguments unclear and unsupported by reasoned argument or legal authority, permitting waiver treatment. More fundamentally, his contentions concerning Brady, evidence the jury did not hear, and consideration of youth did not challenge the substantive basis for denying resentencing; contentions wholly unrelated to the section 1172.6 denial, including alleged trial error, are not cognizable on this appeal. The court also noted that the trial court had expressly considered DePonte's age at the hearing and was not persuaded it precluded a finding of implied malice.
The court then addressed DePonte's remaining requests for sentencing relief. He is not yet eligible for a youth offender parole hearing: he was sentenced on December 12, 2001, to 50 years to life, and under section 3051, subdivision (b)(3) becomes eligible only at his twenty-fifth year of incarceration, so he is not yet eligible under section 3051 or People v. Franklin. The trial court lacked jurisdiction to resentence him under People v. Romero because it denied the section 1172.6 petition on a final judgment. Senate Bill No. 483 did not apply because no prior-prison-term enhancement was imposed. Senate Bill No. 81 likewise gave the trial court no jurisdiction after the petition's denial, and its retroactive application was unavailable because DePonte's judgment has been final since 2004. The order denying the petition for resentencing was affirmed.
Key Takeaways
- A supplemental brief in a section 1172.6 appeal requires the Court of Appeal to evaluate its specific arguments in a written opinion, but does not compel an independent Wende-style review of the entire record for unraised issues.
- Contentions about alleged trial error, Brady violations, and youth sentencing considerations were not cognizable because they did not challenge the actual-killer basis for denying DePonte's resentencing petition.
- The trial court had expressly considered DePonte's age at the section 1172.6 hearing, so his youth-factor argument did not undermine the denial.
- Denial of the section 1172.6 petition left the trial court without jurisdiction to grant Romero or Senate Bill No. 81 resentencing on the long-final judgment.
- Senate Bill No. 483 was factually inapplicable because DePonte received no prior-prison-term enhancement, and he was not yet eligible for a Franklin youth offender parole hearing given his December 12, 2001 sentencing date.
Why It Matters
The decision applies Delgadillo's differentiated appellate-review procedure to a section 1172.6 appeal while still addressing, rather than ignoring, the arguments in a petitioner's supplemental brief. It reinforces the line between challenging eligibility for section 1172.6 resentencing and attempting to reopen unrelated trial or sentencing issues through the same appeal.
The opinion also illustrates how finality and statutory jurisdiction can bar alternative resentencing requests after a section 1172.6 petition is denied. Its analysis of youth offender parole eligibility, Romero, and the two sentencing statutes was tied to DePonte's particular sentence, sentencing date, enhancements, and judgment that became final in 2004.