People v. Gutierrez
| Decision Date | 27 August 2020 |
| Docket Number | B306036 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. UBALDO MIO GUTIERREZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA215904)
APPEAL from an order of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Dismissed in part and affirmed in part.
Richard B. Lennon, under appointment by the Court of Appeal; and Ubaldo Mio Gutierrez, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________
On April 2, 2001, Ki Song was shot in the leg and the back after an argument with the person who shot him. Song was hospitalized for a month and underwent two surgeries. (People v. Gutierrez (Aug. 29, 2003, B159433) [nonpub. opn.] (Gutierrez).) Song identified appellant Ubaldo Mio Gutierrez as the shooter by selecting a photograph of Gutierrez from a six-person photographic display. (Ibid.) Another witness identified Gutierrez as the shooter in a field show-up. (Ibid.)
In October 2001, a jury convicted Gutierrez of attempting to murder Song. (Pen. Code, §§ 187, 664.)1 (Gutierrez, supra, B159433.) The jury also found true allegations that he personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b)-(d)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court sentenced Gutierrez to prison for a term of 32 years to life.
In his direct appeal, Gutierrez challenged the sufficiency of the evidence based on alleged weaknesses in the evidence identifying him as the shooter. In August 2003, we rejected the argument and affirmed the judgment. (Gutierrez, supra, B159433.)2
On March 17, 2020, Gutierrez filed in the superior court a petition for resentencing under section 1170.95 and Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, p. 5105) (the petition for resentencing). On the same day, Gutierrez filed in the superior court a petition for writ of habeas corpus (the habeas petition). The habeas petition was based in part on alleged new evidence ofa gunshot residue test indicating the absence of gunshot residue in a test kit pertaining to Gutierrez and the failure of Gutierrez's trial counsel to present the evidence.
On March 27, 2020, the trial court denied both the petition for resentencing and the habeas petition. Regarding the petition for resentencing, the court stated that Gutierrez was not entitled to relief under section 1170.95 "because he was the actual shooter"; and relief under Senate Bill No. 620 was not available "because his case is final."
Regarding the habeas petition, the court stated that "[a]n inconclusive [gunshot residue] test is not sufficient to overturn the verdict" and Gutierrez "has not demonstrated that his trial counsel was ineffective."
On April 21, 2020, Gutierrez filed a notice of appeal from the order denying his petition for resentencing and the order denying his habeas petition.
We appointed appellate counsel for Gutierrez, who filed a brief setting forth the pertinent procedural history and a summary of relevant facts, and raising no issues on appeal. Counsel requests that we "follow the procedures set forth in People v. Serrano (2012) 211 Cal.App.4th 496." Counsel also notified Gutierrez that he would be filing a brief, that Gutierrez was entitled to file a supplemental brief with this court, and that counsel remained available to brief any issues upon our request. This court also notified Gutierrez that he may file a supplemental brief.
On August 11, 2020, Gutierrez filed a supplemental brief asserting numerous arguments, which we address below.
Because Gutierrez appeals from an order denying post-conviction relief, the procedural protections established in People v. Wende (1979) 25 Cal.3d 436 do not apply. (People v. Cole(2020) ___ Cal.App.5th ___ (Cole).) In Cole, Division Two of this court recently explained that in a criminal appeal from a post-conviction order to which Wende does not apply, counsel who find no arguable issues are required to "file a brief with the Court of Appeal setting forth (1) a brief statement of the pertinent procedural history of the case, (2) a brief summary of the pertinent facts, (3) counsel's declaration that there are no reasonably arguable issues to present on appeal, and (4) counsel's affirmation that he or she remains ready to brief any issues at the request of the Court of Appeal." (Cole, supra, ___ Cal.App.5th ___ .) Counsel in this case fulfilled these requirements.
When, as here, the appellant has filed a supplemental brief, he is entitled to our evaluation of the arguments presented in that brief. (See Cole, supra, ___ Cal.App.5th ___ ; cf. Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 6; id. at pp. 554-555 (dis. opn. of George, C. J.).) We now turn to those arguments.
The court denied Gutierrez's petition for resentencing under section 1170.95 without appointing counsel or setting an evidentiary hearing because the record of conviction established that Gutierrez was "the actual shooter." Gutierrez contends this was error. We disagree and affirm the order.
Section 1170.95 was enacted in 2018 together with amendments to section 188 and 189 "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f), p. 6674.) Section 1170.95allows those "convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts." (§ 1170.95, subd. (a).) In determining whether a petitioner has made a prima facie showing of eligibility under the statute, the court may consider the record of conviction, including the Court of Appeal's opinion in the petitioner's direct appeal. (People v. Tarkington (2020) 49 Cal.App.5th 892, 899, review granted Aug. 12, 2020, S263219; People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review granted Mar. 18, 2020, S260598.)
Gutierrez is ineligible for relief under section 1170.95 for two reasons. First, relief under section 1170.95 is not available when, as here, the petitioner was convicted of attempted murder, not murder. (People v. Medrano (2019) 42 Cal.App.5th 1001, 1016-1018, review granted Mar. 11, 2020, S259948; People v. Larios (2019) 42 Cal.App.5th 956, 970, review granted Feb. 26, 2020, S259983; People v. Munoz (2019) 39 Cal.App.5th 738, 754, review granted Nov. 26, 2019, S258234; People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105, review granted Nov. 13, 2019, S258175.)3
Second, even if the statute applies to attempted murderers, relief is not available to Gutierrez because the record of his conviction, including our 2003 opinion, establishes that he was not convicted based on the natural and probable consequences doctrine or on a felony murder theory; he was, as the court below stated, "the actual shooter." (Cf. People v. Tarkington, supra, 49 Cal.App.5th at p. 899, review granted Aug. 12, 2020, S263219[person who was actual killer is ineligible for relief under section 1170.95].) Accordingly, the court did not err in denying Gutierrez's petition.
When Gutierrez committed his crime and up until 2018, section 12022.53 required the trial court to impose a consecutive enhancement of 25 years to life if a jury found the defendant personally and intentionally discharged a firearm in committing attempted murder. (Former § 12022.53, subds. (a)(1), (18), (d) & (h); Stats. 2000, ch. 287, § 23, p. 2544.) The Legislature had expressly prohibited courts from exercising discretionary authority under "[s]ection 1385 or any other provision of law" to "strike an allegation under this section or a finding bringing a person within the provisions of this section." (Former § 12022.53, subd. (h); see, e.g., People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363.)
In 2017, the Legislature enacted Senate Bill No. 620, which amended section 12022.53 to permit a trial court, "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h); Stats. 2017, ch. 682, § 2, p. 5106.) The grant of authority "applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)
The amendment took effect in January 1, 2018, and applies in cases where the judgment is not yet final. (See, e.g., People v. Chavez (2018) 22 Cal.App.5th 663, 712; People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091.) The amendment, however, does not apply when, as here, the judgment was final before the law went into effect. (People v. Fuimaono (2019) 32 Cal.App.5th 132, 135.) Indeed, trial courts lack jurisdiction to grant relief under these circumstances and, therefore, an appeal from an order denying the relief must be dismissed. (People v. Hernandez (2019)34 Cal.App.5th 323, 326-327.) Accordingly, we dismiss Gutierrez's appeal to the extent it is from the court's order denying relief under Senate Bill No. 620.
In his petition for resentencing, Gutierrez challenged the imposition of the personal firearm use enhancement under section 12022.53, subdivision (d). In particular, he contended: (1) The jury's true...
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