People v. Guerrero CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Bernardino County · No. FSB1200606
- Trial judge
- Elia V. Pirozzi (retired judge)
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Laurence D. Rubin
Analysis
The trial court denied Guerrero's petition for resentencing under Penal Code section 1172.6, finding he was a direct aider and abettor acting with malice aforethought and thus ineligible for relief. The Court of Appeal affirmed the denial after conducting an independent review of the record pursuant to People v. Delgadillo, finding no potentially meritorious issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.6“The court found Guerrero was not eligible for relief under section 1172.6 and therefore denied the petition without issuing an order to show cause or holding an evidentiary hearing.” | de novo | correct | agree with court The appellate court affirmed the denial, stating that its independent review of the record did not identify any potentially meritorious issues for reversal, and that the record conclusively established ineligibility. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appointed appellate counsel to file a brief identifying no arguable issues and requesting independent review of the record.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any potentially meritorious issues and to request leave to withdraw, ensuring effective assistance of counsel on appeal.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Delgadillo framework for independent review when counsel identifies no issues. However, it is a 'sound with gaps' opinion because it provides no substantive legal analysis of why the record conclusively establishes ineligibility, relying solely on the trial court's findings without citing specific statutory elements or case law supporting the direct aider and abettor determination.
How this analysis was made · dispute it
unusual disposition unusual dispositionThe trial court denied Emilio Guerrero's Penal Code section 1172.6 resentencing petition at the prima facie stage, finding the jury was not instructed on felony murder or natural and probable consequences and that he was a direct aider and abettor who acted with malice. On appeal, appointed counsel filed a Delgadillo brief, Guerrero's own letter raised no issue beyond a plea for leniency, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1172.6 petition without issuing an order to show cause, on the ground that the record of conviction showed the jury was not instructed on felony murder or natural and probable consequences and petitioner was therefore ineligible as a matter of law“The court found Guerrero was not eligible for relief under section 1172.6 and therefore denied the petition without issuing an order to show cause or holding an evidentiary hearing.” | unclear | correct | agree with court If the jury was not instructed on felony murder or the natural and probable consequences doctrine, the conviction necessarily rested on a theory of liability that remains valid after Senate Bill 1437, and the record of conviction conclusively refutes the petition's allegations, so denial at the prima facie stage is proper. The trial court's additional finding that Guerrero acted with malice as a direct aider and abettor sounds like factfinding not permitted at the prima facie stage under People v. Lewis, but it is surplusage where the instructions alone establish ineligibility, so the result is correct. |
Appellate court's handling of the Delgadillo brief and Guerrero's supplemental letter requesting leniency“While we understand his distress about the very lengthy sentence, it is beyond our authority in this appeal to grant a more lenient sentence.” | unclear | correct | agree with court Under Delgadillo, when counsel files a no-issue brief in a section 1172.6 appeal and the defendant files a supplemental brief, the court must evaluate the arguments raised and may exercise discretion to review the record independently; the court did both. A generalized request for leniency is not a cognizable claim of error in an appeal from a 1172.6 order, and the court correctly so stated. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — In an appeal from the denial of a section 1172.6 petition where appointed counsel finds no arguable issues, the Court of Appeal is not required to conduct Wende review but must address issues raised in the defendant's supplemental brief and may exercise discretion to independently review the record.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed appellate counsel who finds no meritorious issues may file a brief referring to anything in the record that might arguably support the appeal.
- missed: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage of a section 1172.6 petition the court may consult the record of conviction but may not engage in factfinding or weighing of evidence; it may deny only where the record conclusively refutes the petitioner's allegations as a matter of law. The trial court's finding that Guerrero acted with malice as a direct aider and abettor implicated this limit, though the instructional finding independently supports denial.
The appellate opinion: sound with gaps — The result is correct because a record showing the jury was never instructed on felony murder or natural and probable consequences establishes ineligibility as a matter of law, and the court properly followed Delgadillo in reviewing the record and responding to the defendant's letter. The opinion, however, does not cite Lewis or address the trial court's apparent factfinding about malice at the prima facie stage, nor does it describe the instructions it reviewed, leaving the reasoning thin.
Opinion
Filed 8/7/24 P. v. Guerrero 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, D083265
Plaintiff and Respondent, v. (Super. Ct. No. FSB1200606)
EMILIO R. GUERRERO, Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino County, Elia V. Pirozzi, Judge. (Retired Judge of San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Emilio R. Guerrero, in pro. per.; Matthew A. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2014, a jury convicted Emilio R. Guerrero and a codefendant of two counts of first degree murder (Pen. Code,1 § 187, subd. (a)) along with other offenses and found Guerrero discharged a firearm causing death or great bodily injury (§ 12022.53, subds. (b), (c), (d) & (e)(1)). The court imposed a total sentence of 160 years to life in prison. Guerrero appealed and this court affirmed the judgment in an unpublished opinion. (People v. Guerrero (Aug. 12, 2016, D069934).) In 2022, Guerrero filed a form petition for resentencing under section 1172.6. The court appointed counsel, received briefing, reviewed the record of conviction, and held a hearing. The court found Guerrero was a direct aider and abettor who acted with malice aforethought. The court also found the jury was not instructed on felony murder or the doctrine of natural and probable consequences. The court found Guerrero was not eligible for relief under section 1172.6 and therefore denied the petition without issuing an order to show cause or holding an evidentiary hearing. Guerrero filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to exercise its discretion under Delgadillo to independently review the record for error. We advised Guerrero of his right to submit his own brief on appeal. He has responded with a brief letter. In his submission, Guerrero does not address any issues regarding the trial court’s order denying his petition.
1 All statutory references are to the Penal Code unless otherwise specified. 2 Guerrero simply asks the court to grant leniency or give him a “break.” While we understand his distress about the very lengthy sentence, it is beyond our authority in this appeal to grant a more lenient sentence. Guerrero has not identified any potentially meritorious issue in this appeal. DISCUSSION As we have noted, appellate counsel has filed a Delgadillo brief and asks the court to independently review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738, counsel has identified two possible issues that were considered in evaluating the potential merits of this appeal: (1) Whether the court relied on any information outside the record of conviction; and (2) Whether the record of conviction conclusively establish Guerrero was ineligible for relief as a matter of law. We exercised our discretion to review the record for error. Our review has not identified any potentially meritorious issues for reversal on appeal. Competent counsel has represented Guerrero on this appeal.
3 DISPOSITION The order denying Guerrero’s petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
RUBIN, J.
Cites, in this corpus
- People v. Delgadillo S266305 · 2022-12-19