People v. Murillo CA4/1

California Court of Appeal · D082520 · 2024-07-30 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD189155
Trial judge: Lisa R. Rodriguez
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Judith D. McConnell, Laurence D. Rubin

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:07Z · confidence low

The trial court resentenced the defendant under Penal Code section 1172.75, striking two invalid prison priors but imposing the original sentence based on a finding that the defendant posed a risk of public danger. The Court of Appeal affirmed the judgment, finding no arguable issues for reversal after an independent review of the record pursuant to People v. Wende.

Ruling reviewed	Standard	The court	The model
Denial of sentence reduction under Penal Code section 1172.75 based on a finding that the defendant posed an unreasonable risk to public safety. “At the conclusion of the resentencing hearing, the court found early release of Murillo would pose a risk of public danger. The court struck the two, now, invalid prison priors and essentially imposed the original sentence.”	unclear	not reached	unsure The appellate court stated it had reviewed the record for error as required by Wende and Anders but did not provide specific reasoning or apply a standard of review to the trial court's factual finding regarding public safety risk. It simply concluded that no arguable issues for reversal were found.
Application of the 'endanger public safety' standard from Penal Code section 1385 rather than the 'unreasonable risk to public safety' standard from section 1170.18. “Whether the court erred in applying the standard “endanger public safety” found in section 1385 rather than the “unreasonable risk to public safety” described in section 1170.18.”	unclear	not reached	unsure The appellate court identified this as a potential issue raised by counsel in the Wende brief but did not analyze it or state a conclusion on its merits, merely stating that no arguable issues for reversal were discovered after review.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying arguable issues and the court to independently review the record for error if counsel finds none.
relied: Anders v. California (1967) 386 U.S. 738 — Requires independent review of the record by the appellate court when counsel files a brief stating there are no arguable issues.

The appellate opinion: sound with gaps — The opinion is procedurally sound in following the Wende/Anders protocol by conducting an independent review of the record. However, it is substantively thin as it fails to address the specific legal arguments regarding the correct statutory standard (Section 1385 vs. 1170.18) or the sufficiency of the evidence for the public safety finding, relying solely on a blanket statement that no arguable issues were found.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:29Z · confidence low

At a Penal Code section 1172.75 resentencing hearing requested by CDCR, the trial court struck Murillo's now-invalid prison prior enhancements but otherwise reimposed his original sentence (life with parole for attempted premeditated murder plus a 25-year-to-life section 12022.53 firearm enhancement), finding that a lesser sentence would endanger public safety based on his continued violence in prison, and declining to dismiss the firearm enhancement. On appeal, appointed counsel filed a Wende/Anders brief, Murillo filed a supplemental brief alleging constitutional violations and judicial bias, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.

Ruling reviewed	Standard	The court	The model
Finding at the section 1172.75 resentencing that reducing Murillo's sentence would endanger public safety, and resulting refusal to reduce the sentence beyond striking the invalid prison priors “the court found early release of Murillo would pose a risk of public danger.”	unclear	correct	agree with court Section 1172.75, subdivision (d)(1) permits the court to decline a lesser sentence if it finds by clear and convincing evidence that a lesser sentence would endanger public safety, and subdivision (d)(3) directs the court to consider post-conviction factors including the defendant's disciplinary record. The trial court's quoted finding that Murillo 'even in prison he continues to be a threat to other people' tracks that standard and rests on his institutional record. The opinion does not state the standard of review or recite the evidence, so the result appears defensible but cannot be verified from the opinion alone.
Refusal to dismiss the section 12022.53 firearm enhancement under section 1385, applying the 'endanger public safety' standard rather than the 'unreasonable risk to public safety' standard of section 1170.18 “Whether the court erred in applying the standard “endanger public safety” found in section 1385 rather than the “unreasonable risk to public safety” described in section 1170.18.”	unclear	correct	agree with court Section 1172.75, subdivision (d)(1) itself uses the 'endanger public safety' formulation, as does section 1385, subdivision (c)(2); section 1170.18's narrower 'unreasonable risk' definition governs Proposition 47 petitions, not section 1172.75 resentencing or section 1385 dismissal decisions. The trial court therefore applied the correct standard. The trial court's statement that it 'cannot dismiss the enhancement' is ambiguous, but read with its public-safety finding it reflects the section 1385(c)(2) bar rather than a mistaken belief that it lacked discretion. The Court of Appeal did not explain any of this, which is a gap but does not undermine the result.
Rejection of Murillo's claim that the trial judge was biased because she considered his prison disciplinary records “Murillo contends the judge was biased because she reviewed the prison record regarding his continued violence and misconduct in prison and prison reports are biased.”	de novo	correct	agree with court Section 1172.75, subdivision (d)(3) expressly requires the resentencing court to consider post-conviction factors, including the defendant's disciplinary record while incarcerated. A judge's consideration of statutorily required evidence is not judicial bias, and disagreement with the weight given to prison reports does not show partiality. The appellate court's summary rejection is correct.
Wende/Anders independent review of the record on appeal from the resentencing judgment, finding no arguable issues “We have reviewed the record for error as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal.”	de novo	correct	agree with court The court followed the Wende procedure, invited and considered a supplemental brief, and addressed the Anders issues counsel identified. It did not address whether Wende independent review is even required on an appeal from a postjudgment resentencing proceeding in light of People v. Delgadillo, but because the court conducted the full review anyway, any omission could only favor the appellant. The disposition is defensible on the opinion's own terms.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error before affirming.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous must file a brief referring to anything in the record that might arguably support the appeal, after which the court independently examines the record.
missed: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende/Anders independent-review procedures are not constitutionally required in appeals from postconviction resentencing-type proceedings (there, section 1172.6); the court should instead notify the defendant, consider any supplemental brief, and may dismiss if none is filed, though it retains discretion to review the record. The opinion applied Wende without addressing whether Delgadillo governs a section 1172.75 appeal.

The appellate opinion: sound with gaps — The court conducted the independent review Wende requires, considered Murillo's supplemental brief, and reached a result consistent with section 1172.75's 'endanger public safety' standard and its mandate to consider prison disciplinary records. It did not, however, explain why the section 1170.18 'unreasonable risk' standard is inapplicable, did not address whether Wende review applies to section 1172.75 appeals after Delgadillo, and did not clarify the trial court's ambiguous statement that it 'cannot dismiss the enhancement.'

How this analysis was made · dispute it

record incomplete

Opinion

Filed 7/30/24 P. v. Murillo CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082520

Plaintiff and Respondent, v. (Super. Ct. No. SCD189155)

JOAQUIN MURILLO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Affirmed. Joaquin Murillo, in pro. per.; and Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2004, a jury convicted Joaquin Murillo of attempted premeditated murder (Pen. Code,1 §§ 664/187, subd. (a), 189; count 1), and first degree robbery (§§ 211, 212.5; count 2). Both offenses were enhanced by firearm allegations under section 12022.53, subdivisions (b), (c) and (d)).

1 All statutory references are to the Penal Code. The court sentenced Murillo to life with the possibility of parole for count 1 and imposed a 25-year-to-life term for the firearm enhancement under section 12022.53 and one year for the prison prior (§ 667.5, subd. (b)). The sentence on count 2 was stayed under section 654. Murillo appealed and this court affirmed the judgment in an unpublished opinion. (People v. Murillo (Feb. 27, 2007, D046976).) In 2023, the trial court held a hearing at the request of the California Department of Corrections and Rehabilitation to determine whether Murillo should be resentenced under section 1172.75. At the conclusion of the resentencing hearing, the court found early release of Murillo would pose a risk of public danger. The court struck the two, now, invalid prison priors and essentially imposed the original sentence. Murillo filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to independently review the record for error as mandated by Wende. We advised Murillo he could file his own brief on appeal. Murillo has responded by filing a supplemental brief in which he argues the court violated multiple constitutional rights. He contends the sentence is too long and is equivalent to a death sentence. He also criticizes the court’s finding he poses a risk if released early. The court said, in part, “Mr. Murillo has continued to demonstrate that his behavior has not changed, that even in prison he continues to be a threat to other people. The Court believes it would not be appropriate to deviate from the original sentence beyond the dismissal of the prison priors and cannot dismiss the enhancement as requested.”

2 Murillo contends the judge was biased because she reviewed the prison record regarding his continued violence and misconduct in prison and prison reports are biased. We have carefully reviewed Murillo’s extensive complaints in light of the record on appeal. Nothing in Murillo’s current brief raises an arguable issue for reversal on appeal. 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, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified two possible issues that were considered in evaluating the potential merits of this appeal. 1. Whether the court erred in denying any sentence reduction based on a finding that Murillo posed an unreasonable risk to public safety. 2. Whether the court erred in applying the standard “endanger public safety” found in section 1385 rather than the “unreasonable risk to public safety” described in section 1170.18. We have reviewed the record for error as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Murillo on this appeal.

3 DISPOSITION The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

RUBIN, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12