People v. Valdivia CA4/1

California Court of Appeal · D080796 · 2023-03-10 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Bernardino County · No. FVA801582
Trial judge: Ingrid Adamson Uhler
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Joan K. Irion, Buchanan

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:37Z · confidence high

The trial court denied Valdivia's petition for resentencing under former section 1170.95 (now 1172.6) after finding he failed to state a prima facie case for relief. The Court of Appeal affirmed the denial, concluding that Valdivia's supplemental brief raised issues outside the record that were properly addressed via habeas corpus rather than direct appeal.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under former section 1170.95 (now 1172.6) for failure to state a prima facie case. “The court found Valdivia had failed to state a prima facie case for relief under section 1172.6 and denied the petition.”	unclear	correct	agree with court agree with court

Authorities

relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appellate counsel to file a brief identifying potential issues when representing an indigent appellant who is not actively participating in the appeal.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and to notify the client of the right to file a supplemental brief.
relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Challenges based on materials outside the record on appeal must be raised in a petition for habeas corpus, not on direct appeal.

The appellate opinion: sound — sound

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

After remand, the San Bernardino Superior Court appointed counsel, received briefing, held a hearing, and denied Andrew Valdivia's Penal Code section 1172.6 resentencing petition for failure to state a prima facie case. On appeal, counsel filed a Delgadillo brief, Valdivia filed a supplemental brief raising trial-counsel ineffective assistance based on matters outside the record, and the Court of Appeal affirmed, holding that claim must be pursued by habeas corpus and that no arguable issue was presented.

Ruling reviewed	Standard	The court	The model
Denial of section 1172.6 resentencing petition at the prima facie stage after appointment of counsel, briefing, and hearing “The court found Valdivia had failed to state a prima facie case for relief under section 1172.6 and denied the petition.”	unclear	correct	unsure The opinion recites that the jury convicted Valdivia of premeditated attempted murder and found he personally discharged a firearm causing great bodily injury, findings consistent with his being the actual, premeditating shooter rather than a defendant convicted on a natural-and-probable-consequences theory, which supports ineligibility. However, the court did not state a standard of review, did not discuss the record of conviction or jury instructions, and did not address the three possible issues counsel flagged (including the missing statutorily mandated briefing issue), so the affirmance rests on Delgadillo's rule that the court need only address the supplemental brief's arguments rather than on a demonstrated merits analysis.
Claim that trial counsel was ineffective for failing to develop a heat-of-passion defense, raised in Valdivia's supplemental brief “Valdivia’s brief raises a challenge on the basis of materials outside the record of this appeal. His remedy, if any, will be by a petition for habeas corpus filed in the trial court.”	unclear	not reached	agree with court An ineffective assistance claim resting on matters outside the appellate record is properly relegated to habeas corpus under People v. Mendoza Tello, and in any event a challenge to the 2009 trial defense is not cognizable in an appeal from the denial of a section 1172.6 petition; the court correctly declined to reach it.

Authorities

relied: People v. Delgadillo (2022) 14 Cal.5th 216 — In an appeal from denial of a section 1172.6 petition where appointed counsel finds no arguable issues, the Court of Appeal must notify the defendant he may file a supplemental brief and must evaluate the arguments raised in that brief, but is not required to conduct an independent Wende review of the record.
relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Ineffective assistance of counsel claims that depend on facts outside the appellate record must be raised by petition for writ of habeas corpus rather than on direct appeal.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed appellate counsel who finds no meritorious issues may file a brief identifying possible issues for the court's consideration.
missed: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage of a section 1172.6 petition the court takes the petitioner's allegations as true and may deny relief only where the record of conviction establishes ineligibility as a matter of law without factfinding; the opinion affirmed a prima facie denial without referencing this standard or the record of conviction.

The appellate opinion: sound with gaps — The opinion correctly applies Delgadillo by addressing the only argument in the supplemental brief and properly routes the outside-the-record ineffective assistance claim to habeas under Mendoza Tello. It does not, however, state the standard of review, cite Lewis, or explain why the record of conviction forecloses relief, and it leaves unaddressed the three potential issues counsel identified, including the alleged failure to order statutorily mandated briefing.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 3/10/23 P. v. Valdivia 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, D080796

Plaintiff and Respondent, v. (Super. Ct. No. FVA801582)

ANDREW VALDIVIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino County, Ingrid A. Uhler, Judge. Affirmed. Andrew Valdivia, in pro. per.; and Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2009, a jury convicted Andrew Valdivia with two counts of premeditated attempted murder (Pen. Code,1 §§ 664 & 187, subd. (a)) and found true the allegation he personally discharged a weapon causing great 1 All further statutory references are to the Penal Code. bodily injury (§ 12022.53, subds. (d) & (e)(1)). The jury also found Valdivia personally inflicted great bodily injury (§ 12022.7, subd. (a)). Valdivia was sentenced to an indeterminate term of 30 years plus a term of 55 years to life. Valdivia appealed and this court ordered the trial court to strike the 10 year terms imposed under section 186.22, subdivision (b)(1)(C). The court affirmed the balance of the judgment. (People v. Valdivia (Aug. 12, 2011, D057386) [nonpub. opn.].) In 2021, Valdivia filed a petition for resentencing under former section 1170.95 (now renumbered section 1172.6). The court summarily denied the petition without appointing counsel or conducting a hearing. Valdivia appealed and this court remanded with directions to appoint counsel and conduct an appropriate hearing. (People v. Valdivia (Mar. 25, 2022, D079032) [nonpub. opn.].) On remand the court appointed counsel, received briefing, and conducted a hearing. The court found Valdivia had failed to state a prima facie case for relief under section 1172.6 and denied the petition. Valdivia filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). We forwarded counsel’s brief to Valdivia and gave notice pursuant to Delgadillo that he could file his own brief. In the opening brief, appellate counsel has identified three possible issues that were considered in accordance with Anders v. California (1967) 386 U.S. 738: 1. Whether the court erred in failing to order statutorily mandated briefing before ruling on Valdivia’s petition.

2 2. Whether Valdivia received ineffective assistance of counsel when counsel conceded that Valdivia had not stated a prima facie case for resentencing. 3. Was Valdivia eligible for relief under section 1172.6? Valdivia has responded with a supplemental letter brief which we will address below. The Supplemental Brief Valdivia filed a brief in response to the “Delgadillo” notice. Although his brief is filed in the appeal from denial of his resentencing petition, it does not actually address the merits of his purported challenge of the denial. Valdivia acknowledges the trial court found he had been convicted of attempted murder and that the trial court found he had acted with malice in his attempts to commit murder, he really should have been convicted of manslaughter on a heat of passion theory. Valdivia contends his trial attorney provided ineffective assistance in failing to develop his defense. He does not contend the trial court misunderstood the nature of the offense for which he was found guilty; found he acted with premeditation, and personally discharged a weapon causing great bodily injury. Valdivia’s brief raises a challenge on the basis of materials outside the record of this appeal. His remedy, if any, will be by a petition for habeas corpus filed in the trial court. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Nothing in Valdivia’ s submission has raised any arguable issues for reversal on appeal. Competent counsel has represented Valdivia on this appeal.

3 DISPOSITION The order denying Valdivia’s petition for resentencing under section 1172.6 is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

IRION, J.

BUCHANAN, J.

Cites, in this corpus

People v. Delgadillo S266305 · 2022-12-19
People v. Mendoza Tello S055184 · 1997-04-17