People v. Valdivia CA4/1 ( 2023 )

Filed 3/15/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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, ORDER MODIFYING OPINION
NO CHANGE IN JUDGMENT
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on March 10, 2023, be
modified as follows:
On page 2, first sentence of the fourth full paragraph, the words
“received briefing” are omitted. It should read as follows:
On remand the court appointed counsel and conducted a hearing.
There is no change in the judgment.
HUFFMAN, Acting P. J.
Copies to: All parties
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Filed 3/10/23 P. v. Valdivia CA4/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
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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.
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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.
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