People v. Godinez CA2/8 ( 2020 )

Filed 11/24/20 P. v. Godinez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B298474
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA126401)
v.
JOSE GODINEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Pat Connolly, Judge. Affirmed.
Orly Ahrony for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo and Yun K. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Jose Godinez was convicted by
jury in February 2014, along with two codefendants, of one count
of premeditated attempted murder. A gang enhancement (Pen.
Code, § 186.22, subd. (b)(1)(C)) and a firearm use enhancement
(§ 12022.53, subd. (e)(1)) were also found true. Defendant was
sentenced to an indeterminate term of 40 years to life.
In an unpublished opinion, we affirmed the convictions of
all defendants but reversed the firearm use enhancement and
remanded for resentencing. (People v. Ifopo (Feb. 16, 2016,
B255922) [nonpub. opn.].) Specifically, as to defendant Godinez,
we said: “the court shall strike the [Penal Code]
section 12022.53, subdivision (e)(1) enhancement. The court
shall sentence him under section 12022.53, subdivision (d)
instead of under subdivision (e)(1).” The Supreme Court denied
review.
In August 2016, the resentencing hearing was held.
Defendant’s counsel was present, but defendant was not present.
The court struck the firearm use enhancement pursuant to Penal
Code section 12022.53, subdivision (e)(1). The court then
imposed an aggregate sentence of 40 years to life, consisting of
15 years to life for the attempted murder, and 25 years to life for
the firearm use pursuant to section 12022.53, subdivision (d).
The court forwarded a new abstract of judgment to the
Department of Corrections and Rehabilitation. Defendant did
not appeal.
More than two years later, on February 19, 2019, defendant
filed a petition for writ of habeas corpus seeking to vacate the
August 2016 judgment of conviction and requesting a new
sentencing hearing to take place in his presence.
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A hearing was held on May 9, 2019, at which defendant
and his counsel were present. Defense counsel proposed to call a
purported gang expert to testify defendant was not a gang
member. The court stated it had read and considered the
exhibits attached to defendant’s petition, that it found the
proposed expert testimony to be irrelevant, and did not intend to
retry the case. After hearing the arguments of counsel, and
extensively discussing the trial evidence with counsel, the court
denied the request to modify defendant’s sentence.
Defendant contends the court violated his rights by failing
to hold an evidentiary hearing on the habeas petition. We
disagree. Where habeas relief “hinges on the resolution of factual
disputes, then the court should order an evidentiary hearing.”
(People v. Romero (1994) 8 Cal.4th 728, 739-740; see also Cal.
Rules of Court, rule 4.551(f) [“An evidentiary hearing is required
if . . . the petitioner’s entitlement to relief depends on the
resolution of an issue of fact.”].) Defendant filed a habeas
petition for the sole purpose of establishing his right to be present
at a resentencing hearing because he had not been present for
the August 2016 resentencing hearing. Where, as here, “ ‘there
are no disputed factual questions as to matters outside the trial
record, the merits of a habeas corpus petition can be decided
without an evidentiary hearing.’ ” (People v. Duvall (1995)
9 Cal.4th 464, 478.)
Defendant also claims the court was biased against him.
Defendant never objected in the trial court on this basis and
never moved to disqualify Judge Connolly. The contention has
therefore been forfeited. (People v. Rodriguez (2014) 58 Cal.4th
587, 626 [the defendant cannot raise claim of judicial bias for the
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first time on appeal]; accord, People v. Johnson (2018) 6 Cal.5th
541, 592.)
In any event, the contention is without merit. Defendant’s
argument rests on a mischaracterization of the court’s actions.
The court did not take on the role of prosecutor. Rather, the
court, after listening to argument, thoroughly explained the trial
evidence and bases for its decision that defendant was not
entitled to an order striking the firearm use enhancement. The
record does not show the court acted in a biased manner.
DISPOSITION
We affirm the order denying defendant’s request to modify
his sentence.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.
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