Filed 1/17/18 P. v. Giraldes CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. LARRY GIRALDES, JR., Defendant and Appellant.

H043962 (Santa Clara County Super. Ct. No. 157274)

In 1993, defendant Larry Giraldes was convicted of two counts of first degree murder (Penal Code § 187, subd. (a))[1], possession of a firearm by a convicted felon (former § 12021, subd. (a)), first degree burglary (§ 459), and conspiracy to escape from custody. (§§ 182, subd. (a) & 4532, subd. (b).) The trial court also found a prior serious felony conviction allegation to be true. (§ 667, subd. (a).) On March 9, 1993, the court sentenced defendant to two consecutive terms of 25 years to life to be served consecutively to an aggregate term of twelve years, four months. This court affirmed the judgment in an unpublished opinion. (People v. Giraldes (June 22, 1995, H011038) [nonpub. opn.].)

Subsequently in 2015, defendant filed a petition for writ of habeas corpus in propria persona. In the petition, he argued that because the murders in which he aided and abetted were the natural and probable consequences of a conspiracy to distribute illegal drugs, he was improperly convicted of first degree murder pursuant to People v. Chiu (2014) 59 Cal.4th 155. On April 11, 2016, the superior court granted defendant’s petition for writ of habeas corpus, reduced defendant’s first degree murder convictions to second degree murder, subject to the People’s option to retry defendant on those counts, and set the matter for a resentencing hearing. On August 29, 2016, the court resentenced defendant to two consecutive terms of 15 years to life, and again imposed the original aggregate determinate sentence of twelve years, four months, to be served consecutively to the indeterminate term. The court ordered defendant to pay a $1,000 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a $1,000 parole revocation fine (§ 1202.45), and awarded him presentence credit for a total of 753 days plus an additional 8,572 actual days in the Department of Corrections and Rehabilitation, the latter to calculate his applicable conduct credits. Defendant filed a timely notice of appeal on August 30, 2016.

On appeal, we appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), which states the case and the facts but raises no specific issues.

Pursuant to Serrano, on September 13, 2017, we notified defendant of his right to submit written argument on his own behalf within 30 days. On October 18, 2017, we received a supplemental brief from defendant. In his brief defendant reviews the facts of his original conviction, and argues that his sentence is not proportional to the sentences imposed on his codefendants. He fails to articulate any basis for finding error in his resentencing, instead stating, “[t]he legal standard is beyond appellant’s ability to articulate, and is best left up to this court.” Finally, appellant seeks a further review of the issues raised on direct appeal.

Defendant’s conviction is now long final, and this court is without jurisdiction to consider any issues arising out of the original conviction. As nothing in defendant’s supplemental brief raises an arguable issue on appeal from the 2016 resentencing, we must dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)

Disposition

The appeal is dismissed.

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