Opinion
G061904
11-14-2023
THE PEOPLE, Plaintiff and Respondent, v. ESTEBAN GUTIERREZ, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 98WF0720, Cheri T. Pham, Judge. Affirmed.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
No Appearance for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
We appointed counsel to represent Esteban Gutierrez on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court she found no issues to argue on his behalf.
Counsel advised the court that the procedures set forth in People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 (Anders), do not apply to this case. (People v. Delgadillo (2022) 14 Cal.5th 216, 226, 231 (Delgadillo).) Therefore, when appointed appellate counsel finds no viable issues, counsel should file a brief informing the court that counsel found no arguable issues and including a concise narration of facts. (Id. at p. 231.) The reviewing court should send the brief to the defendant with notice the defendant may file a supplemental brief or letter within 30 days, and if the defendant does not, the court may dismiss the appeal. (Id. at pp. 231-232.) However, no independent review of the record is compelled. (Id. at p. 232.) If no brief or letter is filed, the court may dismiss the appeal without issuing an opinion but should notify the defendant of the dismissal. (Ibid.) The court retains discretion to independently review the record in any Penal Code section 1172.6 appeal.(Ibid.)
Effective June 30, 2022, the Legislature renumbered Penal Code section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) For purposes of clarity, we refer to the statute as section 1172.6 throughout the opinion. All further statutory references are to the Penal Code, unless otherwise indicated.
Counsel requested this court exercise its discretion to conduct an independent review, which we have. Counsel provided information about issues she considered to assist the court in conducting a discretionary independent review of the record. (Anders, supra, 386 U.S. at pp. 744-745.) Counsel identified one issue-did the trial court properly deny Gutierrez's section 1172.6 petition?
We gave Gutierrez 30 days to file written argument on his own behalf. If the defendant raises issues in a supplemental brief or letter, the court must evaluate the arguments raised and issue a written opinion. (Delgadillo, supra, 14 Cal.5th at p. 232.) Gutierrez filed a supplemental brief, and we address his claims anon. We find no error and affirm the postjudgment order.
FACTS
The facts are taken from our prior nonpublished opinion, People v. Gutierrez (Nov. 23, 2021, G060090) (Gutierrez).
"In November 1998, an information charged Gutierrez with murder (§ 187, subd. (a)). The information alleged Gutierrez personally used a firearm during the commission of the alleged offense pursuant to sections 12022.5, subdivision (a), and 12022.53, subdivision (b).
"The following year, Gutierrez pleaded guilty to second degree murder and admitted a weapon enhancement pursuant to section 12022.5, subdivision (a). Gutierrez offered the following factual statement as a basis for his guilty plea: 'In Orange County on March 7, 1998[,] I personally used a firearm and shot and killed Jorge Reynoso. I did so with malice aforethought and the intent to kill but without premeditation and deliberation.' On the guilty plea form, Gutierrez acknowledged he would be sentenced to prison for 10 years on the weapon enhancement and to a consecutive 15 years to life sentence on the second degree murder charge.
"Gutierrez signed the bottom of the guilty plea form indicating 'I understand each and every one of the rights outlined above and I hereby waive and give up each of them in order to enter my plea to the above charge(s). I am entering a plea of guilty because I am in fact guilty and for no other reason. I declare under penalty of perjury that I have read, understood, and personally initialed each item above and discussed them with my attorney, and everything on this form is true and correct. The signing and filing of this form is CONCLUSIVE EVIDENCE I have plead [sic] guilty to the enumerated charges herein.' Gutierrez's trial counsel also signed the form.
Consistent with the plea agreement, the trial court sentenced Gutierrez to 10 years for the weapons enhancement and to a consecutive indeterminate term of 15 years to life for second degree murder."
In March 2021, Gutierrez filed a petition for resentencing pursuant to section 1172.6. (Gutierrez, supra, G060090.) The trial court denied the petition, concluding he was not convicted of murder "based on felony-murder or on a natural and probable consequences doctrine or other theory." (Ibid.) We affirmed the denial of his first section 1172.6 petition. (Ibid.)
In January 2022, Gutierrez filed a second petition pursuant to section 1172.6. The prosecution filed a response.
The trial court denied the petition. The court noted Gutierrez "ma[de] virtually the same argument" in his second petition as he did in his first petition. The court explained the record of conviction demonstrates Gutierrez was the actual killer. Gutierrez timely appealed.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) amended sections 188 and 189, effective January 1, 2019, to eliminate natural and probable consequences liability for murder, and to limit the scope of the felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).) Under sections 188 and 189, as amended, murder liability can no longer be "imposed on a person who [was] not the actual killer," who "did not act with the intent to kill," or who "was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) SB 1437 also added section 1172.6 which, as originally enacted, set forth a procedure whereby a "person convicted of felony murder or murder under a natural and probable consequences theory" could petition for resentencing relief. (Former § 1172.6, subd. (a), as amended by Stats. 2018, ch. 1015, § 1.)
Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), effective January 1, 2022, amended section 1172.6, subdivision (a), to expand the individuals entitled to petition for resentencing. (Stats. 2021, ch. 551, § 1, subd. (a).) Subdivision (a) of that section now expressly permits individuals convicted of attempted murder or manslaughter under a natural and probable consequences theory to file a petition for resentencing relief. A section 1172.6 petition is required to make "'a prima facie showing' for relief. [Citation.]" (Lewis, supra, 11 Cal.5th at p. 960.)
In Lewis, our Supreme Court held, "The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) To be eligible for relief under section 1172.6, the petitioner must make a prima facie showing that he or she "could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).)
Here, the trial court correctly denied Gutierrez's petition because the record established he was convicted on a theory of murder that remains valid notwithstanding SB 1437's amendments to sections 188 and 189. (People v. Verdugo (2020) 44 Cal.App.5th 320, 330, disapproved on another ground by Lewis, supra, 11 Cal.5th at pp. 961-963.) Specifically, Gutierrez, under penalty of perjury, admitted he personally and intentionally shot and killed the victim. The purpose of the statute was "'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. Cervantes (2020) 46 Cal.App.5th 213, 221.) Gutierrez was the actual killer who admitted he intended to kill the victim. Based on Gutierrez's rendition of the facts, he cannot show he could not have been convicted under sections 188 and 189.
Gutierrez's supplemental brief is much the same as his supplemental brief in Gutierrez, supra, G060090. Gutierrez's argument we should rely on a self-serving statement, not under oath, that he made when he was arrested is unavailing. As we opined in Gutierrez, supra, G060090, his statements to a detective that the "gun went off by accident" and that he "only intended to scare the victim," are belied by Gutierrez's subsequent statements to the trial court. These facts do not render Gutierrez eligible for relief under section 1172.6.
Gutierrez argues his constitutional right to the equal protection of the laws was violated. This was not raised in the trial court. In order for an appellate court to make a determination of whether the trial court erred, there must be a record that demonstrates what the court's decision-making process was in reaching its conclusion. In cases such as this, where the issues were not raised in the trial court, we are left without any ability to evaluate the trial court's decision. (People v. Nelson (2011) 51 Cal.4th 198, 227.) Therefore, we do not address his claims his federal constitutional rights were violated. We find no error.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: BEDSWORTH, J. MOORE, J.