People v. Murillo CA4/1

California Court of Appeal · D081578 · 2023-10-05 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCD189155
Trial judge: Desiree Bruce-Lyle
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), O'Rourke, Buchanan

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:28Z · confidence high

The trial court denied Murillo's petition for resentencing under Penal Code section 1172.6, finding he failed to establish a prima facie case for relief because he was the sole perpetrator and actual shooter. The Court of Appeal affirmed the denial, finding no error in the trial court's reliance on the record of conviction and prior appellate opinion.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1172.6 “The court determined Murillo had not stated a prima facie case for relief under the statute and therefore denied the petition without issuing an order to show cause.”	de novo	correct	agree with court The appellate court affirmed the denial, noting that the record of conviction, including the information, verdict forms, and prior appellate opinion, conclusively established that Murillo was the sole perpetrator and actual shooter, which precludes relief under section 1172.6. The court found no error in the trial court's determination that Murillo failed to state a prima facie case.

Authorities

relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appointed appellate counsel to file a brief identifying no meritorious issues and requesting independent review of the record.
relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate courts to conduct an independent review of the record when appointed counsel identifies no meritorious issues.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying potentially meritorious issues and to request leave to withdraw, with the court conducting an independent review.

The appellate opinion: sound — The opinion is sound because it correctly applies the Wende/Anders procedure to review the record for error and correctly concludes that the record of conviction establishes Murillo's ineligibility for relief under section 1172.6. The court properly dismisses Murillo's unrelated arguments regarding intoxication as irrelevant to the postjudgment petition.

How this analysis was made · dispute it

unusual disposition

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

The trial court denied Joaquin Murillo's Penal Code section 1172.6 resentencing petition at the prima facie stage without issuing an order to show cause, finding from the record of conviction that he was the sole perpetrator and actual shooter whom the jury found acted with premeditation and personally discharged a firearm causing great bodily injury. On appeal, counsel filed a Delgadillo brief, Murillo filed a supplemental brief attacking his underlying conviction on intoxication grounds, and the Court of Appeal exercised its discretion to independently review the record, found no arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
Denial of section 1172.6 petition at the prima facie stage, without an order to show cause, based on the record of conviction (information, verdict forms, prior appellate opinion) showing Murillo was the sole perpetrator and actual shooter with premeditation and a personal-discharge firearm finding “The court found Murillo was the sole perpetrator, and that he was the actual shooter.”	unclear	correct	agree with court A defendant convicted as the sole, actual perpetrator who personally discharged a firearm causing great bodily injury, with a jury finding of premeditation and deliberation, was necessarily convicted on a theory of his own malice, not felony murder, natural and probable consequences, or any imputed-malice theory, so he is ineligible for section 1172.6 relief as a matter of law. The jury findings alone establish this without resort to the factual summary in the prior appellate opinion, so the trial court's reference to that opinion (which People v. Lewis cautions against at the prima facie stage) would be harmless even if improper. The appellate court did not expressly state a standard of review or analyze the three Anders issues counsel flagged, but the result is correct.
Rejection of Murillo's supplemental-brief arguments that intoxication should have precluded his premeditated attempted murder conviction and the firearm enhancement “Murillo’s challenges to his underlying conviction are not relevant to this appeal from an order denying his postjudgment petition for resentencing.”	unclear	correct	agree with court Section 1172.6 is a limited procedural vehicle for defendants convicted under now-invalid imputed-malice theories; it does not permit relitigation of trial issues such as voluntary intoxication, and the 2007 affirmance made the judgment final. The court correctly treated these claims as outside the scope of the appeal.
Exercise of discretion under Delgadillo to conduct an independent Wende/Anders review of the record and finding of no arguable issues “We have independently reviewed the record for error consistently with Wende and Anders.”	unclear	correct	agree with court Delgadillo holds that Wende review is not constitutionally required in appeals from section 1172.6 denials but permits the court to conduct independent review in its discretion; the court did so here and also addressed the defendant's supplemental brief, satisfying Delgadillo's requirements. The opinion, however, does not explain why the three issues counsel identified lack merit, leaving its reasoning thin.

Authorities

relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende independent review is not required in appeals from the denial of a section 1172.6 petition, but the appellate court may exercise discretion to conduct it and must evaluate any supplemental brief the defendant files.
relied: People v. Wende (1979) 25 Cal.3d 436 — Procedure for independent appellate review of the record when appointed counsel finds no arguable issues on direct appeal.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous should 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, including a prior appellate opinion, but may not engage in factfinding; the prior opinion's factual summary should be used with caution, and the petition may be denied only where the record establishes ineligibility as a matter of law.

The appellate opinion: sound with gaps — The affirmance is plainly correct because the jury's findings that Murillo personally and premeditatedly shot the victim as the sole perpetrator establish ineligibility as a matter of law, and the court properly declined to entertain attacks on the long-final conviction. The opinion nonetheless skips any analysis of the three Anders issues counsel raised, particularly the trial court's reliance on the prior appellate opinion for facts, and does not cite People v. Lewis, the controlling authority on the prima facie inquiry.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 10/5/23 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, D081578

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

JOAQUIN MURILLO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Desiree Bruce-Lyle, Judge. Affirmed. Joaquin Murillo, in pro. per.; and Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2005, a jury convicted Joaquin Murillo of willful, deliberate premeditated attempted murder (Pen. Code,1 §§ 664 & 187) and robbery (§ 211). The jury also found Murillo personally discharged a firearm causing 1 All further statutory references are to the Penal Code. great bodily injury (§ 12022.53, subd. (d)). Murillo was sentenced to an indeterminate term of 25 years to life in prison. Murillo appealed his conviction, and this court affirmed the judgment in an unpublished opinion. (People v. Murillo (Feb. 27. 2007, D046976).) In April 2022, Murillo filed a petition for resentencing under section 1170.95 (now renumbered section 1172.6). The court appointed counsel, received briefing and considered the record of conviction, including the information, the verdict forms and this court’s prior opinion. After a hearing the court found Murillo was not eligible for relief under section 1172.6. The court found Murillo was the sole perpetrator, and that he was the actual shooter. The jury found Murillo acted with premeditation and deliberation and that Murillo personally discharged a firearm causing great bodily injury. The court determined Murillo had not stated a prima facie case for relief under the statute and therefore denied the petition without issuing an order to show cause. Murillo 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 potentially meritorious issues for reversal on appeal. Counsel asks the court to exercise its discretion and conduct an independent review of the record in the same manner as we would do under the procedure outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). We offered Murillo the opportunity to file his own brief on appeal. He has filed a supplemental brief which we will discuss below. The facts of the underlying offenses were discussed in our prior opinion. We will not repeat them here.

2 DISCUSSION As we have noted, appellate counsel has asked the court to exercise its discretion to independently review the record for error. To assist the court in its review and in an effort to comply with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified three possible issues that we considered in evaluating the potential merits of this appeal. 1. Whether the trial court erred in relying on this court’s prior opinion for the facts of the crime. 2. Whether the trial court erred in concluding the verdicts conclusively established Murillo had not stated a prima facie case for relief. 3. Whether the trial court erred in finding the true finding on the firearm enhancement conclusively rebutted Murillo’s statement of a prima facie case for relief. Murillo’s personal brief does not actually identify any error by the trial court in ruling on the petition. Instead, he argues first, he should not have been convicted of premeditated attempted murder because he was intoxicated at the time of the offense. He also argues the prosecutor should not have charged him with the firearm enhancement because he was intoxicated at the time of the offense. Murillo’s challenges to his underlying conviction are not relevant to this appeal from an order denying his postjudgment petition for resentencing. His conviction was upheld on direct appeal and the judgment has been final for years. Murillo’s supplemental brief has not identified any potentially meritorious issues for reversal on appeal. We have independently reviewed the record for error consistently with Wende and Anders. We have not discovered any potentially meritorious 3 issues for reversal on appeal. Competent counsel has represented Murillo on this appeal. DISPOSITION The order denying Murillo’s petition for resentencing under section 1172.6 is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

BUCHANAN, J.

Cites, in this corpus

People v. Delgadillo S266305 · 2022-12-19
People v. Wende Crim. 20851 · 1979-10-12