Opinion
G063000
03-13-2024
THE PEOPLE, Plaintiff and Respondent, v. SERGIO QUIROZ, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgement order of the Superior Court of Orange County, No. 02CF3148 Jonathan S. Fish, Judge. Affirmed.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
Defendant Sergio Quiroz filed a petition for the recall of his sentence pursuant to Penal Code section 1170, subdivision (d)(1)(A). Appointed counsel for Quiroz filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting we review the entire record. Acknowledging Anders v. California (1967) 386 U.S. 738, appointed counsel also identified two potential issues to assist in our independent review.
All further statutory references are to the Penal Code.
In People v. Delgadillo (2022) 14 Cal.5th 216, 226 (Delgadillo), the California Supreme Court concluded "the procedures set out in Anders and Wende do not apply to an appeal from the denial of postconviction relief." Although Delgadillo involved the review of a postjudgment order pursuant to section 1172.6, we find the procedures set forth in Delgadillo to be applicable in reviewing the postjudgment order here.
Prior to Delgadillo, "our courts of appeal uniformly agree[d] that Wende/Anders does not require independent review of appeals from postjudgment orders in criminal proceedings" though a split remained as to whether a court should exercise its independent discretion to review a summary denial in certain contexts. (People v. Freeman (2021) 61 Cal.App.5th 126, 133.)
The procedures set forth by Delgadillo require the court of appeal, in cases where appointed counsel has found no arguable issues to be pursued, to provide proper notice to the defendant, who should then be given an opportunity to file a supplemental letter or brief. (Delgadillo, supra, 14 Cal.5th at pp. 231-232.) The court of appeal may also conduct its own independent review of the record in an exercise of its discretion. (Id. at p. 232.) Here, Quiroz was given notice and an opportunity to file a supplemental brief and he did so.
Exercising our discretion, we have examined the entire record as well as Quiroz's supplemental brief and find no reasonably arguable issue. (Delgadillo, supra, 14 Cal.5th at p. 232.) We therefore affirm.
FACTS AND PROCEDURAL BACKGROUND
Since the sole issue before us relates to the petition to recall Quiroz's sentence, only the relevant facts and procedural background are provided.
In 2004, a jury found Quiroz guilty of premeditated and deliberate attempted murder (§§ 664, subd. (a), 187, subd. (a)), criminal threats (§ 422), and two counts of street terrorism (§ 186.22, subd. (a)). The jury also found Quiroz had personally discharged a firearm resulting in great bodily injury (§ 12022.53, subd. (d)) during the commission of the attempted murder, and that the attempted murder and criminal threats were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). The trial court imposed a total sentence of life with the possibility of parole, plus a consecutive term of 25 years to life. On direct appeal to this court, the judgment was affirmed. (People v. Quiroz (Jan. 27, 2005, G034245) [nonpub. opn.].) A postjudgment appeal as to the denial of a petition for resentencing pursuant to section 1172.6 was later affirmed by this court as well. (People v. Quiroz (Jan. 5, 2023, G061569) [nonpub.opn.].)
In July 2023, Quiroz filed a petition for recall of his sentence pursuant to section 1170, subdivision (d)(1)(A) and People v. Heard (2022) 83 Cal.App.5th 608 (Heard). The trial court denied the petition via minute order in August 2023 finding Quiroz "statutorily ineligible for relief because he was not sentenced to LWOP [(life without the possibility of parole)] or its functional equivalent. ([§] 1170(d)(1)(A).)"
In so finding, the trial court indicated, "[s]ection 1170(d)(1)(A) provides, 'When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.' Juvenile offenders sentenced to the functional equivalent of LWOP may also file a petition for resentencing under [section] 1170[, subd.] (d) as a matter of equal protection. [Citation.] [¶] Defendant was convicted of attempted murder in 2004 and sentenced to an indeterminate term of life in prison with the possibility of parole, plus a consecutive indeterminate term of 25 years to life in state prison. An indeterminate sentence of 25 years to life with the possibility of parole is not the functional equivalent of LWOP. (People v. Perez (2013) 214 Cal.App.4th 49, 57 (Perez).) [Quiroz] will become eligible for parole in three years at the age of 40. While undoubtedly a lengthy sentence, [Quiroz] is younger than the defendant in Perez, supra, [at p. 58,] who would not have been eligible for parole until the age of 47. As such, it cannot be said that petitioner is serving the functional equivalent of LWOP." Quiroz appealed.
DISCUSSION
Quiroz argues he is "similarly situated with other juvenile offenders [sentenced to life without the possibility of parole] who are eligible for the recall and resentencing provisions" of section 1170, subd. (d)(1)(A). He contends, like the defendant in Heard, the trial court denied him equal protection of the law by denying his recall petition.
In Heard, the Court of Appeal found section 1170, subd. (d)(1) violates equal protection principles by denying minors sentenced to the "functional equivalent of life without parole" the opportunity to petition for resentencing. (Heard, supra, 83 Cal.App.5th at pp. 633-634.) When considering whether a prison commitment is the functional equivalent of life without the possibility of parole, "[t]here is a bright line between LWOP and long sentences with eligibility for parole if there is some meaningful life expectancy left when the offender becomes eligible for parole." (Perez, supra, 214 Cal.App.4th at p. 57.) Although Quiroz asserts "a sentence of 'LIFE' is imprisonment for the duration of a person's natural life," the trial court noted Quiroz becomes eligible for parole at the age of 40. (Underscore omitted.) Based on the record before us, we do not find Quiroz's sentence to be the functional equivalent of life without the possibility of parole. Therefore, relief under section 1170, subd. (d)(1)(A) was properly denied.
After an independent review of the entire appellate record and Quiroz's written contentions, we find no arguable issues. We therefore affirm the trial court's order denying Quiroz postjudgment relief.
DISPOSITION
The postjudgment order denying the recall petition is affirmed.
WE CONCUR: O'LEARY, P. J., MOORE, J.