Opinion
G060087
07-22-2021
THE PEOPLE, Plaintiff and Respondent, v. NUVIA JEANNETH CONSTANTINO, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 04NF0022 Cheri T. Pham, Judge. Affirmed. Request for judicial notice. Granted.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
A jury convicted defendant Nuvia Jeanneth Constantino of second degree murder. The trial court sentenced her to 15 years to life in prison. Defendant appealed and this court affirmed.
Following the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.), defendant petitioned for resentencing pursuant to Penal Code section 1170.95. (Unless otherwise noted, further statutory references are to the Penal Code.) The trial court summarily denied defendant's petition; she appealed. Appointed appellate counsel 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. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel identified potential issues to assist us in our independent review. We provided defendant 30 days to file written argument on her own behalf; no supplemental brief was received.
We have independently examined the entire record (People v. Flores (2020) 54 Cal.App.5th 266), and appointed counsel's Wende/Anders brief. We have found no reasonably arguable issue and therefore affirm. (Wende, supra, 25 Cal.3d 436.)
Defendant requests that we take judicial notice of this court's unpublished opinion in People v. Constantino (Feb. 5, 2008, G037608). Pursuant to Evidence Code sections 451, subdivision (a), and 459, we grant the request. The facts set forth herein are taken from that opinion. Defendant also requests that we take judicial notice of the instructions given to the jury at trial. Pursuant to Evidence Code sections 452, subdivision (d)(1), and 459, we grant the request.
“During the evening of January 2, 2004, Yolanda Veloz, her sister-in-law, and a friend were talking in front of their apartment complex. A car drove into the alley next to the apartment complex and parked. Defendant, Linda Duarte, and Robert Marquez got out of the car and walked past Veloz and her companions toward Duarte's apartment. As defendant, Duarte, and Marquez walked by, Duarte made comments to Veloz and her companions. (A couple of weeks before this incident, Veloz had had a confrontation with Duarte's mother. Additionally, a few days before the incident, in the middle of the night, defendant and Duarte had yelled at Veloz to come outside, and defendant said something to Veloz about disrespecting her ‘homegirl's' mother.)
“About 15 minutes later, defendant, Duarte, and Marquez left the apartment, again walked past Veloz and her companions, talked ‘smack,' and said, ‘[w]hat are you looking at?' Veloz's friend told defendant's group to keep walking, and they were not worth their time. Defendant, Duarte, and Marquez got into the car and drove away.
“Defendant, Duarte, and Marquez returned a short time later and parked in the same spot in the alley. As they got out of the car, defendant and Duarte had beer bottles in their hands, and started ‘trash talking' to Veloz and her companions. Defendant and Duarte were louder and more aggressive than the first two times they had passed Veloz and her companions. Defendant approached Veloz, who tried to talk to defendant, but they began to argue. Defendant threatened Veloz with the beer bottle, and Veloz tried to get the bottle away from defendant.
“Defendant hit Veloz, and stabbed her four times with what was described as a butterfly knife. Duarte and defendant got into the car and sped away. Veloz died as a result of massive bleeding; one of the stab wounds had pierced her chest cavity and entered her heart. Veloz and her companions were not in possession of any weapons, and did not attack defendant.
“Defendant did not testify, but a tape recording of a police interview of defendant conducted the evening after Veloz's murder was played for the jury. In the recording, defendant said the following: Veloz confronted defendant when she, Duarte, and Marquez were leaving Duarte's apartment. When they returned to Duarte's apartment, Veloz was not outside. When defendant and her companions left the apartment for a second time, three girls rushed at them. The girls ‘started socking' defendant, and threw her on the ground. Someone hit defendant in the back. Defendant had obtained a butterfly knife from Duarte's apartment, and had it in her jacket pocket with the blade open for protection because she believed Veloz and her companions were waiting for her and were always carrying weapons; she used this knife to stab Veloz. Defendant believed she only stabbed Veloz once while Veloz was ‘socking' her, and defendant was still on the ground.
“Defendant also said the following in the recording: Five or six ‘gangster baldy guys' with Veloz attacked Marquez. Defendant thought one of the men with Veloz was going to pull a gun. She had told Duarte and Marquez she wanted a knife to stab Veloz, but she only meant she would stab Veloz if Veloz pulled out a weapon. Defendant would not have fought with Veloz if Veloz had not approached her. Defendant had no bruises or cuts despite her claim Veloz had attacked her and beat her. Defendant could not explain why only she-not Duarte or Marquez-had a knife if they all expected trouble from and were fearful of Veloz and her companions.
“After the stabbing, defendant cleaned the knife with Duarte's shirt, and washed the clothes she was wearing. A few days after the murder, the police located a chrome butterfly knife at Duarte's father's residence; the knife was found wrapped in a pair of pants, inside a plastic trash bag, on the floor of a bedroom closet.
“Defendant was convicted by a jury of second degree murder and was sentenced to a prison term of 15 years to life. Defendant timely appealed.” (People v. Constantino, supra, G037608.) This court affirmed the judgment in an unpublished opinion. (Ibid.)
Procedural History
In March 2021, defendant filed a petition for resentencing under section 1170.95. That petition included a request for appointment of counsel. The trial court, without appointing counsel, summarily denied the petition by minute order: “The petition does not set forth a prima facie case for relief under the statute. A review of court records indicates defendant is not eligible for relief under the statute because the defendant does not stand convicted of murder or defendant's murder conviction(s) is not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors.” Defendant filed a notice of appeal from the postjudgment order denying her petition for resentencing.
In People v. Flores, supra, 54 Cal.App.5th at pages 273-274, another panel of this court concluded that while an appellate court is not required to independently review the record on an appeal from a postjudgment order summarily denying a section 1170.95 petition, it is not prohibited from doing so and, in the interests of justice, it should do so.
In the Wende/Anders brief, defendant's appellate counsel suggests we consider the following issues:
1. Whether the trial court erred by summarily denying defendant's section 1170.95 petition without appointing counsel.
2. Whether the summary denial of defendant's section 1170.95 petition was prejudicial.
In People v. Lewis (2020) 43 Cal.App.5th 1128, 1140, review granted March 18, 2020, S260598, the appellate court determined that the trial court, in considering a section 1170.95 petition, is required to appoint counsel for a petitioner “after the court determines that the petitioner has made a prima facie showing that petitioner ‘falls within the provisions' of the statute, and before the submission of written briefs and the court's determination whether petitioner has made ‘a prima facie showing that he or she is entitled to relief.'”
However, in People v. Cooper (2020) 54 Cal.App.5th 106, 109, review granted November 10, 2020, S264684, another appellate court held that “the right to counsel attaches upon the filing of a facially sufficient petition that alleges entitlement to relief.” In a line of cases following People v. Cooper, the failure to appoint counsel before summarily denying a section 1170.95 petition is harmless error if the petitioner is ineligible for relief as a matter of law. (E.g., People v. Daniel (2020) 57 Cal.App.5th 666, 673, review granted Feb. 24, 2021, S266336.)
Any error by the trial court in failing to appoint counsel was harmless because defendant was ineligible for relief as a matter of law in this case. Defendant failed to make a prima facie showing that she falls within the provisions of section 1170.95 because the record of conviction makes clear that defendant was the actual killer and was not tried under the felony murder rule or using the vicarious liability theory of natural and probable consequences. She was therefore ineligible for relief under section 1170.95 as a matter of law. (People v. Tarkington (2020) 49 Cal.App.5th 892, 899, review granted Aug. 12, 2020, S263219.)
We have reviewed the record in accordance with Wende, supra, 25 Cal.3d 426 and Anders, supra, 386 U.S. 738, and we find no arguable issues on appeal. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.)
Disposition
The postjudgment order is affirmed.
WE CONCUR: MOORE, ACTING P. J., MARKS, J. [*]
[*] Judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.