Opinion
E072783
09-11-2019
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL VALENZUELA MEJIA, Defendant and Appellant.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF055143) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant Gabriel Valenzuela Mejia was charged by felony complaint with premeditated murder. (Pen. Code, § 187, subd. (a), count 1.) The complaint further alleged that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury and death to another person. (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8).) On January 31, 2007, a trial court granted the People's motion to amend count 1 to second degree murder and to amend the firearm enhancement to a violation of section 12022.5, subdivision (a). Defendant then pled guilty to count 1 and admitted the firearm enhancement. The court ultimately sentenced him to an indeterminate term of 15 years to life on count 1, plus 10 years on the firearm enhancement. Defendant subsequently filed a petition for resentencing, pursuant to section 1170.95. The court dismissed the petition based on the factual basis of the plea, which the court determined was proof that defendant was the actual killer.
All further statutory references will be to the Penal Code, unless otherwise noted. --------
Defendant filed a timely notice of appeal. We affirm.
PROCEDURAL BACKGROUND
On January 31, 2007, defendant entered a plea agreement and pled guilty to second degree murder (§ 187, subd. (a), count 1) and admitted the personal use of a firearm under section 12022.5. The factual basis for the plea was defendant's written admission on the plea form stating, "I shot [the victim] with a handgun without justification under the law, resulting in his unlawful death."
On March 22, 2007, the court sentenced defendant to an indeterminate sentence of 15 years to life on count 1. It imposed a consecutive indeterminate term of 10 years to life on the firearm enhancement.
Defendant filed an appeal, and his appointed counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. This court affirmed the judgment. (People v. Mejia (Oct. 16, 2007, E043000) [nonpub. opn.].)
On November 8, 2017, pursuant to a letter from the Division of Adult Institutions at the California Department of Corrections and Rehabilitation (CDCR), the court vacated the consecutive 10 years to life sentence on the firearm enhancement and imposed a consecutive determinate term of 10 years instead. At a subsequent hearing on March 20, 2018, the court held a nunc pro tunc hearing and ordered the minute order from March 22, 2007, to be corrected to reflect that the previously imposed sentence of 10 years to life was vacated, and the sentence of 10 years was imposed. The court ordered the clerk to prepare an amended abstract of judgment and send a copy to the CDCR.
On January 25, 2019, defendant filed a petition for resentencing under section 1170.95. The court dismissed the petition on April 12, 2019, noting that the factual basis written on defendant's plea form was proof that he was the "actual slayer."
Defendant filed a timely notice of appeal on May 17, 2019.
In a letter dated July 30, 2019, appointed counsel requested a correction to the amended abstract of judgment filed on April 10, 2018. The amended abstract listed the wrong sentence enhancement, and counsel requested that it be corrected to accurately reflect the firearm enhancement as a violation of section 12022.5, subdivision (a). An amended abstract of judgment was filed on August 15, 2019.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, setting forth a statement of the case and the following potential arguable issue: whether the trial court erred in dismissing his petition for resentencing under section 1170.95. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: RAPHAEL
J. MENETREZ
J.