Opinion
F086883
04-17-2024
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ULLOA, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. LF012047B, Charles R. Brehmer, Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appointed counsel for defendant Daniel Ulloa filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After independently examining the record, we shall affirm.
BACKGROUND
The facts of the underlying offenses were discussed in our prior opinion (case No. F082814). We will not repeat them here.
After a trial by jury, Ulloa was acquitted of attempted murder and premeditation as alleged in count 1, and convicted of the lesser offense of attempted manslaughter (Pen. Code, §§ 664/192, subd. (a)) with personal discharge of a firearm resulting in great bodily injury (§ 12022.53, subds. (c), (d)), and personal infliction of great bodily injury (§ 12022.7, subd. (a)). He was found guilty of assault with a firearm as alleged in count 2 (§ 245, subd. (a)(2)), with personal use of a firearm (§ 12022.5, subd. (a)). The jury found true the gang-enhancement allegation as to both counts 1 and 2 (§ 186.22, subd. (b)). Ulloa was acquitted of assault with a firearm as alleged in counts 3 and 4 and found guilty of the lesser offense of simple assault on count 3 (§ 240). Ulloa was acquitted on counts 5, 6, and 7 of felony false imprisonment. On count 8, Ulloa was found guilty of participating in criminal gang activity (§ 186.22, subd. (a)).
All further statutory references are to the Penal Code.
Ulloa was ordered to serve an aggregate term of 17 years and six months for the attempted manslaughter with enhancements. Punishment for counts 2 and 8 were stayed pursuant to section 654, and a concurrent jail term of 180 days was imposed for the misdemeanor assault in count 3.
On appeal after the initial judgment, this court issued a nonpublished opinion in People v. Ulloa (May 5, 2023, F082814). We accepted respondent's concession to the merit of Ulloa's challenge to his gang enhancements and gang participation conviction, which were reversed, subject to retrial. This court also decided that respondent correctly conceded the merits of Ulloa's argument in favor of remand for resentencing because the trial court's selection of upper terms conflicted with the recently amended provisions of sections 1170, subdivision (b)(6), as Ulloa was 19 years old at the time of the offenses in July of 2018. The sentence was vacated and this matter remanded to the trial court to determine if Ulloa was entitled to the low term on any or all counts 1, 2, and 8, and the firearm enhancements attached to counts 1 and 2.
On September 1, 2023, following issuance of the remittitur, the trial court resentenced Ulloa. The supplemental probation report prepared for resentencing informed the court of new changes to the law applicable in this case: Senate Bill No. 567 (2021-2022 Reg. Sess.) which amended section 1170, subdivision (b) to alter a trial court's discretion to choose the lower, middle, or upper term for a crime with a sentencing triad; Assembly Bill No. 124 (2021-2022 Reg. Sess.) which further amended section 1170 to make a low term sentence presumptively appropriate under certain circumstances, including youth defined as under the age of 26; and Assembly Bill No. 518 (2021-2022 Reg. Sess.) which amended section 654, subdivision (a), to provide the trial court with discretion to impose and execute the shorter rather than the longer sentence.
The probation officer recommended the upper term based on Ulloa's juvenile adjudications and prior adult conviction, with execution of the longest term. The probation report noted as factors in mitigation Ulloa's youth and that there were two enhancements in the same case. Factors in aggravation included Ulloa's prior sustained petitions in juvenile delinquency proceedings, which were numerous and of increasing seriousness; that Ulloa was on probation at the time of the current crime; that Ulloa's prior performance on juvenile probation was unsatisfactory in that he violated terms and continued to reoffend; and that Ulloa engaged in violent conduct, indicating a serious danger to society.
The prosecutor urged the court to adopt the probation officer's upper term recommendations. Defense counsel urged the trial court to consider that section 1170, subdivision (b)(6), in light of Ulloa's youthfulness at the time of the offenses, required the trial court to select the low terms for offenses and enhancements.
In resentencing Ulloa, the trial court stated that it had "considered everything said by counsel, the changes of the law, my recollection of the case, [and] the criminal history of [Ulloa], which I can consider in regard to low, upper or middle term, factors in aggravation and mitigation." The trial court then denied probation and ordered Ulloa to serve an aggregate term of 10 years: the middle term of three years for the count 1 manslaughter conviction, with a four-year middle term for the gun enhancement (§ 12022.5, subd. (a)), and a three-year enhancement for personal infliction of great bodily injury (§ 12022.7, subd. (a)). A three-year middle term for the count 2 assault with a firearm conviction, plus a four-year firearm enhancement was stayed pursuant to section 654. The court imposed 180 days for count 3, to be served concurrently with count 1. The prosecutor opted not to retry the gang allegations, and count 8 and the gang enhancements attached to the remaining counts were dismissed.
DISCUSSION
We appointed counsel to represent Ulloa on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Ulloa was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from Ulloa.
Having examined the record, we find no arguable error that would result in a disposition more favorable to Ulloa.
DISPOSITION
The judgment is affirmed.
[*] Before Franson, Acting P. J., Smith, J. and Meehan, J.