Filed 4/29/22 P. v. Gutierrez CA2/1

On transfer

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Dismissed in part and affirmed in part.

Richard B. Lennon, under appointment by the Court of Appeal; and Ubaldo Mio Gutierrez, in pro. per., for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General for Plaintiff and Respondent.

________________________________

Ubaldo Mio Gutierrez appealed from superior court orders (1) denying his petition for resentencing under section 1170.95 and an amendment to Senate Bill No. 620 (Stats. 2017, ch. 682) (the petition for resentencing), and (2) denying a petition for writ of habeas corpus. In August 2020, we affirmed the order denying the petition for resentencing and dismissed the appeal from the habeas petition. (People v. Gutierrez (Aug. 27, 2020, B306036) [nonpub. opn.] (Gutierrez II).)

The Supreme Court granted review and, in January 2022, transferred the matter to this court with directions to reconsider the cause in light of its decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis) and the enactment of Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill No. 775).

For the reasons set forth below, we again affirm the order denying the petition for resentencing and dismiss the appeal from the habeas petition.

FACTUAL SUMMARY

A. Background[1]

On the night of April 2, 2001, a man (the shooter) approached Manuel Aguilar, who was in his vehicle in a parking lot on Westmoreland Avenue near Santa Monica Boulevard. The shooter asked Aguilar, “La Mirada?” and Aguilar said, “No.” (Gutierrez I, supra, B159433.) The shooter left.

A few minutes later, the shooter approached Ki Song, who was on a bicycle near the intersection of Westmoreland and Santa Monica. The shooter asked Song where he was from. Song thought the shooter wanted to know his gang affiliation. He told the shooter he was from La Mirada Lobos.

The shooter identified himself as being from “Temple Street” and reached for something at his back or in his waistband. Song then ran across the street. He looked back and saw something metal in Gutierrez’s hand, then heard two or three gunshots. One bullet hit Song in a leg, and a second hit him in his back. Song survived the attack.

Aguilar, from his vehicle in the parking lot, saw the shooting.

Later that night, Gutierrez was involved in a vehicle collision about one mile to one and one-half miles from the scene of the shooting. The police suspected that Gutierrez was the person who shot Song. Police officers drove Aguilar to the site of the collision where, according to a police officer, he “immediately identified [Gutierrez] as the shooter” and Aguilar “was certain that [Gutierrez] was the shooter.” (Gutierrez I, supra, B159433.)

The day after the shooting, a detective visited Song in the hospital and showed him a six-photograph display containing Gutierrez’s photograph. According to the detective, Song immediately pointed to Gutierrez’s photograph “and said, ‘That’s him.’ ” (Gutierrez I, supra, B159433).)

The district attorney charged Gutierrez with attempted murder and alleged certain firearm enhancements.

Neither Aguilar nor Song testified at trial.

The trial court did not instruct the jury on the theory of aiding and abetting or the doctrine of natural and probable consequences.[2]

In October 2001, a jury convicted Gutierrez of attempting to murder Song and found true allegations that he personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (b)–(d)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court sentenced Gutierrez to prison for a term of 32 years to life.

Gutierrez appealed. In August 2003, we rejected his argument that the evidence was insufficient to support the conviction and affirmed the judgment. (Gutierrez I, supra, B159433.)

B. Gutierrez’s Petition for Resentencing and Habeas Petition

In March 2020, Gutierrez filed in the superior court a petition for resentencing under Penal Code section 1170.95 and Senate Bill No. 620 (Reg. Sess. 2017−2018) (Stats. 2017, ch. 682, § 2, p. 5105). On the same day, Gutierrez filed in the superior court a petition for writ of habeas corpus. The habeas corpus petition was based in part on alleged new evidence of a gunshot residue test indicating the absence of gunshot residue in a test kit pertaining to Gutierrez and the failure of Gutierrez’s trial counsel to present the evidence.

Gutierrez did not request the court appoint counsel for him.

The trial court denied both the petition for resentencing and the habeas corpus petition without appointing counsel or holding an evidentiary hearing. Regarding the petition for resentencing, the court stated that Gutierrez was not entitled to relief under section 1170.95 “because he was the actual shooter”; and relief under Senate Bill No. 620 was not available “because his case is final.”

Regarding the habeas corpus petition, the court stated that “[a]n inconclusive [gunshot residue] test is not sufficient to overturn the verdict” and Gutierrez “has not demonstrated that his trial counsel was ineffective.”

Gutierrez filed a notice of appeal from the order denying his petition for resentencing and the order denying his habeas corpus petition.

We appointed appellate counsel for Gutierrez, who filed a brief raising no issues on appeal and requesting that we “follow the procedures set forth in People v. Serrano (2012) 211 Cal.App.4th 496.” Gutierrez thereafter filed a supplemental brief raising issues.

On August 27, 2020, we filed an opinion in which we held that Gutierrez is ineligible for relief under section 1170.95 for two reasons: (1) relief under section 1170.95 is not available when, as here, the petitioner was convicted of attempted murder, not murder; and (2) even if the statute applies to attempted murderers, relief is not available to Gutierrez because the record of his conviction establishes that he was not convicted based on the natural and probable consequences doctrine or on a felony murder theory; he was, as the court below stated, “the actual shooter.” (Gutierrez II, supra, B306036.) We therefore affirmed the court’s order denying Gutierrez relief under section 1170.95. We also rejected arguments Gutierrez asserted in his supplemental brief regarding the court’s ruling with respect to Senate Bill No. 620 and his petition for writ of habeas corpus. (Gutierrez II, supra, B306036.)

C. Gutierrez’s Petition for Review and the Supreme Court’s Transfer to this Court

Gutierrez filed a petition for review in the Supreme Court. In November 2019, the court granted the petition and deferred briefing pending its review of People v. Lewis (2021) 43 Cal.App.5th 1128, review granted March 18, 2020, S260598 and People v. Lopez (2020) 38 Cal.App.5th 1087, review granted November 13, 2019, S258175.[3] (People v. Gutierrez (Aug. 27, 2020, B306036), review granted Nov. 24, 2020, S264702; Supreme Ct. Minutes, Nov. 24, 2020, p. 1602.)

In July 2021, the Supreme Court decided Lewis, supra, 11 Cal.5th 952. In Lewis, the court held: (1) A petitioner who files a facially sufficient petition and requests counsel is entitled to the appointment of counsel (id. at pp. 962−963); (2) A trial court may consider the record of the petitioner’s conviction in determining whether the petitioner has made a prima facie case for relief under section 1170.95 (Lewis, supra, at p. 971); and (3) A petitioner who was denied the right to counsel afforded by section 1170.95 and “ ‘whose petition is denied before an order to show cause issues has the burden [on appeal] of showing “it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing.” ’ ” (Lewis, supra, at p. 974).

In October 2021, the Legislature enacted Senate Bill No. 775, which amended section 1170.95 to allow relief for persons convicted of “attempted murder under the natural and probable consequences doctrine.” (Stats. 2021, ch. 551, § 2, p. 6971 [amending § 1170.95, subd. (a)].)

On January 26, 2022, the Supreme Court transferred the case to this court with directions to vacate our 2020 decision and reconsider the case in light of Senate Bill No. 775 and Lewis. We vacated our decision the same day.

We have received supplemental briefs from the parties. Gutierrez, through counsel, asserts that we “must review the record of conviction” and “determine whether the lower court’s error in not appointing counsel and allowing briefing was harmless.” The Attorney General argues that Gutierrez is ineligible for relief as a matter of law because the record establishes that his attempted murder conviction was not based on the natural and probable consequences; and, for the same reason, any error in failing to appoint counsel is harmless. We agree with the Attorney General.

DISCUSSION

A. Gutierrez’s Section 1170.95 Petition for Resentencing after Lewis and Senate Bill No. 775

Under Lewis, a petitioner who files a facially sufficient petition and requests counsel is entitled to the appointment of counsel. (Lewis, supra, 11 Cal.5th at p. 963.) If the court denies a facially sufficient petition without appointing counsel, the error requires reversal only if the petitioner establishes a reasonable probability that the petition would not have been summarily denied if he had been afforded the assistance of counsel. (Id. at p. 974.)

Here, Gutierrez did not request the trial court appoint counsel for him and did not assert the court’s failure to appoint counsel as a point of error on appeal. He has thus arguably waived or forfeited the right to counsel under section 1170.95 and Lewis.

Even if the trial court had a duty to appoint counsel sua sponte and the issue was preserved for appeal, however, Gutierrez has failed to show that any error in appointing counsel was prejudicial.

Section 1170.95, as originally enacted, provided a resentencing petition process for “person[s] convicted of felony murder or murder under a natural and probable consequences theory.” (Stats. 2018, ch. 1015, § 4, pp. 6675−6676.) Under “the natural and probable consequences doctrine, ‘a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the “natural and probable consequence” of the target crime.’ ” (People v. Soto (2020) 51 Cal.App.5th 1043, 1058, quoting People v. Prettyman (1996) 14 Cal.4th 248, 261.) Section 1170.95 was not explicitly available to persons who were convicted of attempted murder.

Senate Bill No. 775 amended section 1170.95 to permit persons convicted of “attempted murder under the natural and probable consequences” to petition for relief. (Stats. 2021, ch. 551, § 2, p. 6971.) It did not, however, alter the rules established in Lewis permitting the court to consider the record of conviction in evaluating whether the petition makes a prima facie showing for relief or the petitioner’s burden to establish prejudicial error on review.

Here, the record of conviction establishes that the petitioner was not convicted of attempted murder under the natural and probable consequences doctrine. The court did not instruct the jury as to the natural and probable consequences doctrine. He could not, therefore, be a person convicted of attempted murder under that theory. (See People v. Cortes (2022) 75 Cal.App.5th 198, 205 [because the petitioner’s “jury was not instructed on any theory of liability for murder or attempted murder that required that malice be imputed to him” he was “ineligible for resentencing under section 1170.95, subdivisions (a) and (b)”]; People v. Daniel (2020) 57 Cal.App.5th 666, 677, review dism. Dec. 1, 2021, S266336 [where jury was not instructed on natural or probable consequences doctrine, the petitioner was not a person convicted under a natural and probable consequences theory, and therefore “ineligible for relief [under section 1170.95] as a matter of law”]; People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review granted July 22, 2020, S262835 [“if the jury was not instructed on a natural and probable consequences or felony murder theory of liability, the petitioner could not demonstrate eligibility as a matter of law”].)

Having reconsidered this matter in light of Lewis and Senate Bill No. 775, we conclude that Gutierrez is ineligible for relief under section 1170.95, as amended by Senate Bill No. 775, as a matter of law. Therefore, if the trial court erred in failing to appoint counsel for Gutierrez, he has failed to establish that the error is prejudicial.

We now turn to arguments Gutierrez raised in the supplemental brief he filed in response to his counsel’s Serrano brief.

B. Senate Bill No. 620

When Gutierrez committed his crime and up until 2018, section 12022.53 required the trial court to impose a consecutive enhancement of 25 years to life if a jury found the defendant personally and intentionally discharged a firearm in committing attempted murder. (Former § 12022.53, subds. (a)(1), (18), (d) & (h); Stats. 2000, ch. 287, § 23, p. 2544.) The Legislature had expressly prohibited courts from exercising discretionary authority under “[s]ection 1385 or any other provision of law” to “strike an allegation under this section or a finding bringing a person within the provisions of this section.” (Former § 12022.53, subd. (h); see, e.g., People v. Kim (2011) 193 Cal.App.4th 1355, 1362–1363.)

In 2017, the Legislature enacted Senate Bill No. 620, which amended section 12022.53 to permit a trial court, “in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section.” (§ 12022.53, subd. (h); Stats. 2017, ch. 682, § 2, p. 5106.) The grant of authority “applies to any resentencing that may occur pursuant to any other law.” (§ 12022.53, subd. (h).)

The amendment took effect in January 1, 2018, and applies in cases where the judgment is not yet final. (See, e.g., People v. Chavez (2018) 22 Cal.App.5th 663, 712; People v. Woods (2018) 19 Cal.App.5th 1080, 1089–1091.) The amendment, however, does not apply when, as here, the judgment was final before the law went into effect. (People v. Fuimaono (2019) 32 Cal.App.5th 132, 135.) Indeed, trial courts lack jurisdiction to grant relief under these circumstances and, therefore, an appeal from an order denying the relief must be dismissed. (People v. Hernandez (2019) 34 Cal.App.5th 323, 326–327.) Accordingly, we dismiss Gutierrez’s appeal to the extent it is from the court’s order denying relief under Senate Bill No. 620.

C. Challenges to Sentence Enhancement Under Section 12022.53, Subdivision (d)

In his petition for resentencing, Gutierrez challenged the imposition of the personal firearm use enhancement under section 12022.53, subdivision (d). In particular, he contended: (1) The jury’s true finding on the personal firearm use enhancement must be reversed because his assault was not committed against a police officer or firefighter; (2) Section 12022.53 violates the constitutional rights to equal protection and due process because it enhances the sentences of those who attempt murder but not attempted voluntary manslaughter or assault with a deadly weapon; and (3) Under Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296, the enhancement violates proscriptions against double jeopardy and “double punishments,” and violates the “Ireland merger doctrine.”[4] Gutierrez repeats these arguments on appeal.

It is unclear from Gutierrez’s petition or his supplemental brief on appeal whether he asserted these arguments in support of his petition to have the trial court strike the enhancement under Senate Bill No. 620 or he is asserting that the enhancement constitutes an illegal sentence that must be stricken regardless of Senate Bill No. 620. To the extent the arguments are offered to support the trial court’s discretion under Senate Bill No. 620, they are now moot in light of our conclusion in the preceding section.

To the extent the arguments are offered as independent grounds for striking the enhancement, they were asserted below without a valid statutory basis for trial court jurisdiction and Gutierrez has not shown that nonstatutory grounds for motions to vacate or correct a judgment—such as, the judgment is void due to a jurisdictional defect in its rendition or the sentence is unauthorized—apply here. (See generally People v. Thomas (1959) 52 Cal.2d 521, 527; People v. Turrin (2009) 176 Cal.App.4th 1200, 1205; People v. Gallardo (2000) 77 Cal.App.4th 971, 980–982.) The absence of a jurisdictional basis in the trial court renders the appeal subject to dismissal. (See People v. Chlad (1992) 6 Cal.App.4th 1719, 1726.)

Even if Gutierrez’s arguments are cognizable in this appeal, they are without merit. He contends that the enhancement under section 12022.53, subdivision (d) must be reversed because he did not commit assault against a police officer or firefighter. It is true that in cases of assault, the enhancement is applied only under certain circumstances, including assault against a police officer or firefighter. (§ 12022.53, subd. (a)(7).) Gutierrez, however, was not convicted of assault; he was convicted of attempted murder. The enhancement applies to any person who is convicted of a felony specified in subdivision (a) of section 12022.53, and that subdivision includes attempted murder. (§ 12022.53, subd. (a)(1) & (18).) The enhancement thus applies to Gutierrez’s conviction.

Gutierrez further contends that section 12022.53 violates his constitutional right to equal protection of the law because it enhances the sentences of those who attempt murder but not attempted voluntary manslaughter or assault with a deadly weapon. The argument could have been raised on direct appeal and, for that reason, cannot be asserted by subsequent motion on appeal from the denial of that motion. (See People v. Thomas, supra, 52 Cal.2d at p. 527.) Moreover, contrary to Gutierrez’s assertion, the “strict scrutiny standard [for evaluating equal protection arguments] does not apply because section 12022.53, subdivision (d) ‘targets no identifiable suspect class, nor impinges upon any identifiable fundamental right. It merely increases a penalty.’ ” (People v. Vallejo (2013) 214 Cal.App.4th 1033, 1044, fn. 4.) Under the applicable rational relationship standard, the Legislature could rationally decide to punish attempted murder more severely than voluntary manslaughter or assault with a deadly weapon.

Gutierrez further contends that the imposition of the sentence enhancement in his case violates the principles established in Apprendi v. New Jersey, supra, 530 U.S. 466 and Blakely v. Washington, supra, 542 U.S. 296. These cases stand for the proposition that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New Jersey, supra, 530 U.S. at p. 490; Blakely v. Washington, supra, 542 U.S. at p. 301.) This principle was satisfied in this case because the facts required to establish the enhancement were expressly found by the jury beyond a reasonable doubt.

Gutierrez argues that the sentence enhancement under section 12022.53, subdivision (d), violates the double jeopardy clauses of our state and federal constitutions. The argument is without merit because the enhancement does not constitute a separate crime. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130; Plascencia v. Alameida (9th Cir. 2006) 467 F.3d 1190, 1204.) Nor does the statutory proscription against multiple punishments (§ 654) bar imposition of the sentence enhancement. (See People v. Mixon (1990) 225 Cal.App.3d 1471, 1486.)

Lastly, the so-called Ireland merger doctrine does not apply because that doctrine applies in cases involving second degree felony murder. (People v. Chun (2009) 45 Cal.4th 1172, 1200.) Gutierrez was not convicted on that theory.

D. Appeal From Denial of Habeas Corpus Petition

Gutierrez’s notice of appeal states that he is appealing from the trial court’s denial of his habeas corpus petition, as well as from the denial of his petition for resentencing. As our Supreme Court recently explained, “in noncapital cases, if the superior court denies a petition for a writ of habeas corpus, the petitioner has no statutory right to appeal. Instead, the petitioner must file a new, original petition, generally in the Court of Appeal.” (Robinson v. Lewis (2020) 9 Cal.5th 883, 895; see also In re Clark (1993) 5 Cal.4th 750, 767, fn. 7 [“no appeal lies from the denial of a petition for writ of habeas corpus”].) We therefore dismiss the appeal to the extent the notice of appeal is from the order denying his habeas corpus petition.

Although we may treat his appeal as the filing of a new habeas corpus petition in this court (see People v. Gallardo, supra, 77 Cal.App.4th at p. 986), we need not take that step in this case because on April 30, 2020, nine days after filing his notice of appeal in this case, Gutierrez filed a habeas corpus petition in this court on the same grounds asserted in his superior court habeas corpus petition. We have denied that petition by separate order. (In re Ubaldo Gutierrez (May 14, 2020, B305680) [summarily denying petition].)

DISPOSITION

The order denying Gutierrez’s petition for resentencing is affirmed.

The appeal from the denial of Gutierrez’s petition for writ of habeas corpus is dismissed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

VOGEL, J.*

[1] Our factual summary of the facts is drawn from our prior opinion in Gutierrez’s direct appeal. (People v. Gutierrez (Aug. 29, 2003, B159433) [nonpub. opn.] (Gutierrez I).)

[2] We have granted the Attorney General’s motion to take judicial notice of the jury instructions given in Gutierrez’s trial and the jury’s verdict form.

[3] Among the issues to be briefed in the Supreme Court in People v. Lopez (Nov. 10, 2021, S258175) was whether section 1170.95, as enacted in 2018, applied “to attempted murder liability under the natural and probable consequences doctrine.” (Supreme Ct. Minutes, Nov. 13, 2019, p. 1623).) After the Legislature amended section 1170.95 to apply to persons convicted of attempted murder under the natural and probable consequences doctrine, the Supreme Court transferred the matter to the Court of Appeal without deciding this question with directions to reconsider the cause in light of the amended law. (Supreme Ct. Minutes, Nov. 10, 2021, p. 1581.)

[4] See People v. Ireland (1969) 70 Cal.2d 522.

* Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.