Opinion
G061692
06-08-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE JESSE GIRON, Defendant and Appellant.
Jean Matulis 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NOT TO BE PUBLISHED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. 15NF2290, Andre Manssourian, Judge. Affirmed.
Jean Matulis for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
Defendant Jose Jesse Giron filed a petition for resentencing pursuant to former Penal Code section 1170.95. The trial court denied Giron resentencing relief at the prima facie hearing on the petition. Appointed counsel for Giron filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), setting forth the facts of the case. Citing Anders v. California (1967) 386 U.S. 738 (Anders), counsel also identified a potential issue to assist in our independent review. Giron was given an opportunity to file a supplemental brief but did not do so. Under Delgadillo, we exercise our discretion to conduct an independent review of the record.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code.
Exercising our discretion, we have examined the entire record and we find no reasonably arguable issue. (Delgadillo, supra, 14 Cal.5th at p. 232.) We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2018, Giron pleaded guilty to attempted murder (§§ 664, subd. (a), 187, subd. (a); count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3). As to counts 1 and 2, he admitted to personally inflicting great bodily injury (§ 12022.7, subd. (a)(1)) and the personal use of a firearm (§ 12022.5, subd. (a)). Giron also admitted to committing all three offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and to having served time in prison for two prior felony convictions (§ 667.5, subd. (b)). The trial court imposed a total prison sentence of 18 years.
In May 2022, Giron filed a petition for resentencing on count 1 pursuant to former section 1170.95 and counsel was subsequently appointed for him. The People filed a response to Giron's petition, arguing it should be denied. A prima facie hearing on the petition was heard by the trial court. At this hearing, the trial court reviewed the petition, the People's response, as well as the record of conviction, and found Giron had failed to establish a prima facie showing for relief. A statement of decision was issued by the trial court on August 12, 2022. Giron appealed.
DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) amended the felony murder rule and the natural and probable consequences doctrine as it relates to murder "'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.' [Citation.]" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Senate Bill No. 1437 also created procedures "for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (Lewis, at p. 957.) A subsequent amendment to former section 1170.95 extended relief to defendants convicted of attempted murder based on the natural and probable consequences doctrine or manslaughter. (Sen. Bill No. 775 (2021-2022 Reg. Sess.) Stats. 2021, ch. 551.)
After receipt of a section 1172.6 resentencing petition, counsel shall be appointed upon petitioner's request, the prosecutor must then file a response to the petition, and a reply may be filed by the petitioner. (§ 1172.6, subds. (b)(1)-(3) &(c).) The trial court shall then "hold a hearing to determine whether the petitioner has made a prima facie case for relief." (Id., subd. (c).)
At the prima facie hearing, the trial court may rely on the record of conviction. (Lewis, supra, 11 Cal.5th at pp. 970-971.) The record of conviction may include the change of plea form, abstract of judgment, and charging document. (People v. Self (2012) 204 Cal.App.4th 1054, 1059.) "The record of conviction will necessarily inform the trial court's prima facie inquiry under [former] section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, at p. 971.) At the prima facie hearing, the defendant must show "he did not, in fact, act or harbor the mental state required" for a conviction under current law. (People v. Duchine (2021) 60 Cal.App.5th 798, 815.)
Appellate counsel suggests we consider whether the facts Giron admitted to in his guilty plea were sufficient to establish a prima facie showing for relief. Here, the trial court reviewed the record of conviction, noting the factual basis Giron confirmed as true at the time of his admission. In the guilty plea form, which was initialed and signed by Giron under the penalty of perjury, he admitted the following: "I did willfully, unlawfully, knowingly and intentionally, with the specific intent to kill and murder, attempt to murder Anthony S., a human being ...." He also admitted to "personally inflict[ing] great bodily injury on Anthony S., who was not an accomplice . . . ", and to "personally us[ing] a firearm in the commission and attempted commission" of the attempted murder. In his plea form, Giron also indicated he was entering a guilty plea "because [he] is in fact guilty and for no other reason." By admitting these allegations, Giron admitted facts necessary to sustain his conviction under the law as amended by Senate Bills Nos. 1437 and 775.
After independently reviewing the entire appellate record, we find no arguable issues.
DISPOSITION
The postjudgment order denying the resentencing petition is affirmed.
WE CONCUR: O'LEARY, P.J. DELANEY, J.