Opinion
D077438
10-30-2020
THE PEOPLE, Plaintiff and Respondent, v. OSCAR RAFAEL SANCHEZ, Defendant and Appellant.
Daniel J. Kessler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF003430) APPEAL from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In July 2005, a jury convicted Oscar Rafael Sanchez of second degree murder (Pen. Code, § 187, subd. (a)) and found the allegation of firearm use to be not true. Sanchez was sentenced to an indeterminate term of 15 years to life.
All further statutory references are to the Penal Code. --------
Sanchez appealed and this court affirmed his conviction in an unpublished opinion filed December 5, 2007. (People v. Sanchez (Dec. 5, 2007, D050383) [nonpub. opn.].)
In February 2020, Sanchez filed a form petition for resentencing pursuant to section 1170.95. The court appointed counsel and held a hearing. At the hearing, the prosecutor represented that this court's opinion identified Sanchez as the killer and that the gun went off while Sanchez was struggling with the victim. The court then dismissed the petition over defense counsel's objection.
Sanchez has appealed the denial of his petition.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating he has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Sanchez the opportunity to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
The facts of the offense were summarized in our prior opinion. (People v. Sanchez, supra, D050383.) We will quote them here:
"On June 12, 2004, Mendoza and James Johnson attended a wedding reception and a party after the reception. Johnson was carrying a loaded semi-automatic handgun for protection and he gave the gun to Mendoza at the party because he considered himself too drunk to carry it. Johnson watched Mendoza pull the clip from the gun, check to see that no round was chambered in the barrel of the gun, replace the clip, switch two safeties into the 'on' position and place the gun into a leg pocket on Mendoza's pants.
"At some point, Mendoza called Sanchez, his neighbor, to get some marijuana and the men decided to meet at Mendoza's home. Mendoza and Johnson arrived at the home shortly after 2:00 a.m. the following morning and they smoked methamphetamine while they waited for Sanchez. About a half-hour later, Sanchez arrived at the home with Andrew Garcia, Francisco Sanchez (Francisco) and Julio Hernandez; the men talked and shared drinks, marijuana and methamphetamine. At about 4:30 a.m., Johnson's girlfriend picked him up, but he decided to leave his gun with Mendoza.
"Garcia, Francisco and Hernandez testified at trial, but gave differing accounts as to what transpired after Johnson left. Francisco, Sanchez's cousin, testified that after Johnson left, Mendoza and Sanchez fell over each other and Sanchez indicated with a hand sign that Mendoza had a gun. Francisco, Sanchez and Garcia then went outside to shoot a bow and arrow for about 15-20 minutes. During this time, Francisco claimed that Mendoza was 'mad dogging' or staring at him, so he told Sanchez that they should leave. The four men went to Sanchez's home and Mendoza came over uninvited a short time later.
"Francisco claimed that Mendoza continued to stare at him, pulled out a gun, 'click[ed] it' and put it in Francisco's face. As Mendoza pulled the slide back, Francisco thought he was going to be killed. Sanchez then turned around, saw what was happening and said 'what's up.' As Mendoza turned and pointed the gun at Sanchez, Sanchez tried to grab the gun and the two men struggled over it. Sanchez then tripped Mendoza and fell on top of him as the men struggled for the gun. Francisco claimed that the gun fired as Sanchez tried to pull it away from Mendoza and that both men had their hands on the gun at the time.
"Hernandez testified that after Johnson departed, he, Sanchez and Francisco went to Sanchez's home and that Mendoza later came over while Hernandez was in the kitchen cooking. While in the kitchen, Hernandez heard Sanchez say 'what, what's going on,' wrestling and then a gun shot. After he heard the gun shot, Hernandez ran to the door and saw Sanchez getting to his feet and Mendoza on the ground. Hernandez thought Sanchez was holding the gun in his left hand when he got up, but believed that Sanchez was right-handed. When Hernandez asked what had happened, Sanchez replied that Mendoza had 'tried to smoke [him].'
"During an earlier police interview Hernandez denied being at Sanchez's home on the night of the incident. During that same interview, Hernandez informed police of Sanchez's claim that Mendoza had been watching Sanchez's house and wanted to mess with Sanchez's wife. At trial, however, Hernandez denied or could not remember making these statements.
"The police interviewed Garcia, Sanchez's lifelong friend, before trial. During the first interview, Garcia stated that Mendoza 'showed' the gun to Francisco and did not point it at Francisco. Sanchez then grabbed the gun away from Mendoza, showed Francisco the gun, told Francisco it was loaded, stated 'this is the way you shoot a gun' and then fired it. Garcia told police that Sanchez and Mendoza were not fighting for the gun and when he asked Sanchez why he had shot Mendoza, Sanchez replied that he acted to defend Francisco. During a second interview, Garcia stated that Sanchez acted to defend himself and the other people in the room. He also claimed that he was on drugs at the time of incident, did not remember anything and did not know what happened, but that Sanchez and Mendoza had struggled for possession of the gun.
"At trial, however, Garcia claimed that he either did not remember his earlier statements to detectives or did not agree with the statements. He denied seeing Sanchez grab the gun and did not remember telling detectives that Sanchez had grabbed the gun. He also claimed that he did not know who had fired the gun and could not remember telling officers that Sanchez had said 'this is the way you shoot a gun.' Garcia testified that Mendoza took out the gun and appeared to point it at Francisco, but when pressed as to whether Mendoza actually pointed the gun at Francisco, Garcia claimed he had been drunk and did not know.
"Despite inconsistencies regarding the shooting, Garcia, Francisco and Hernandez gave similar accounts about the subsequent events. Francisco and Hernandez testified that they wrapped Mendoza's body in a rug and put the body in the back of a truck. Francisco stated that Hernandez drove the truck while he followed in a gray Thunderbird driven by Garcia. The men tried to push the truck off the edge of a cliff, but they ultimately gave up, left the truck and returned to the crime scene and then left. Garcia told a similar story to police during his first interview and at trial.
"Garcia, Francisco and Hernandez pleaded guilty to being an accessory to murder. An information was filed charging Sanchez with murder and alleging that he personally used a handgun and intentionally discharged a firearm proximately causing great bodily harm. A jury found Sanchez guilty of second-degree murder, but not guilty of the enhancements. The trial court sentenced Sanchez to an indeterminate term of 15 years to life in prison. Sanchez appeals."
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review of the record, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that we considered in evaluating the potential merits of this appeal:
1. Whether the court erred in relying on the prosecutor's representation of the contents of the prior appellate opinion without personally reading the opinion;
2. Whether there was prejudice in relying on the prosecutor's statement that Sanchez was the actual killer when the jury found the use of a firearm enhancement not true; and
3. Whether the court erred in dismissing the petition.
We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Sanchez on this appeal.
DISPOSITION
The order is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. HALLER, J.