Filed 10/22/26 P. v. Mariscal CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E087204
v. (Super.Ct.No. RIF1303884)
JOSUE ALFONSO MARISCAL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Joshlyn R. Pulliam,
Judge. Affirmed.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant Josue Alfonso Mariscal appeals the trial court’s order
following a full resentencing hearing upon remittitur. Counsel has filed a brief under the
authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California
(1967) 386 U.S. 738 (Anders), requesting this court to conduct an independent review of
the record. We affirm.
PROCEDURAL BACKGROUND1
In 2018, a jury convicted defendant of second degree murder (Pen. Code2, § 187,
subd. (a), count 1), assault with a firearm (§ 245, subd. (a)(2), count 2), and assault with a
deadly weapon (§ 245, subd. (a)(1), count 3). With respect to the murder, the jury found
true that defendant personally discharged a firearm causing death (§ 12022.53, subd. (d)),
and with respect to all counts, the jury found true that defendant committed the crimes for
the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22,
subd. (b)(1)(B)). A trial court sentenced defendant to a state prison term of 40 years to
life, plus 11 years eight months, consisting of 15 years to life on count 1 plus a
consecutive 25 years to life on the firearm enhancement,3 the upper term of four years on
1 The procedural background is taken, in part, from our nonpublished opinion in
defendant’s prior appeal, People v. Mariscal (Aug. 8, 2024, E080300), which was
deemed part of the appellate record at defendant’s request.
2 All further statutory references will be to the Penal Code, unless otherwise
indicated.
3 The court struck the gang enhancement on count 1.
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count 2 plus a five-year term on the gang enhancement, and one year on count 3 plus one
year eight months on the gang enhancement. The court ordered defendant to pay victim
restitution and other fees and fines. (People v. Mariscal, supra, E080300.)
In 2024, defendant appealed, and this court reversed the true findings on the gang
enhancement allegations and remanded the case to the trial court with directions to give
the People an opportunity to retry the enhancements under the law as amended by
Assembly Bill No. 333 (2021-2022 Reg. Sess.). We also directed the trial court to
conduct a full resentencing and apply the changes in law under Assembly Bill No. 124
(2021-2022 Reg. Sess.), Senate Bill No. 567 (2021-2022 Reg. Sess.), and People v.
Tirado (2022) 12 Cal.5th 688. (People v. Mariscal, supra, E080300.)
On February 11, 2025, the trial court held a resentencing hearing based on the
remittitur. The prosecutor informed the court that the People were electing not to retry
the gang enhancements. He then requested the court to exercise its discretion and strike
the punishment on the section 12022.53, subdivision (d) enhancement, sentence
defendant to 15 years to life, and run the sentences on counts 2 and 3 concurrently.
Defense counsel joined in the request. The court commended defendant on his efforts
made at rehabilitating himself thus far and then resentenced him. The court sentenced
him to 15 years to life on count 1, struck the section 12022.53, subdivision (d)
enhancement, imposed the midterm of three years on both counts 2 and 3, and ran counts
2 and 3 concurrent to the sentence on count 1, for a total term of 15 years to life. The
court updated defendant’s days of credit for time served and ordered the Department of
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Corrections and Rehabilitation to calculate “any additional credits or good time
behavior.” It also stated the previous order for victim restitution would remain in place,
struck “any court fines or fees,” and ordered that any fines or fees that could not be
stricken to be stayed.4
Defendant filed a notice of appeal, in propria persona, on June 26, 2025, along
with a request for certificate of probable cause, in which he acknowledged the delay in
filing the appeal. Defendant explained that he did not intentionally delay in filing the
appeal, but was relying “exclusively on the representation of appointed counsel” to
investigate and know “all laws that favored appellant.” Defendant also asserted that his
case should have been transferred to juvenile court for a Welfare and Institutions Code
section 707 hearing under the laws currently in effect. The court granted the request for
certificate of probable cause.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d
436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case and two
potential arguable issues: (1) whether the notice of appeal was timely, given that
defendant was not informed of his appellate rights and the court granted his request for a
certificate of probable cause, which implicitly deemed his appeal timely; and (2) whether
4 We note that, on April 1, 2026, at defendant’s request, the court ordered the
abstract of judgment to be corrected to accurately reflect the oral pronouncement of
judgment.
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the trial court committed error during defendant’s resentencing. Counsel has also
requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J
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