People v. Saldana CA5 ( 2020 )

Filed 12/7/20 P. v. Saldana CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079712
Plaintiff and Respondent,
(Super. Ct. No. 1246306)
v.
ALVARO LEAL SALDANA, JR., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas
D. Zeff, Judge.
Randall Conner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Detjen, J. and Meehan, J.
FACTS AND PROCEDURAL HISTORY1
On March 22, 2008, Alvaro Leal Saldana, Jr. (defendant), and his brother and
original codefendant, Ray Gutierrez, Jr., attended a wedding reception in Hilmar.2 There,
Gutierrez got into a fight with Miguel Perez, an inactive Norteño gang member with
whom he also had personal issues dating back a number of years. Roger Villanueva, a
friend of Perez who did not get along with the brothers, and others joined in. Someone
— possibly Villanueva — knocked defendant out. (People v. Gutierrez, supra,
F062970.) A few days later, defendant happened to encounter Villanueva. Defendant
pointed at him and made a gun gesture with his hands. (Ibid.)
About a week before May 25, 2008, Gutierrez gave his cousin an item wrapped in
cloth and asked him to hold it for him. The cousin subsequently told police it was a gun.
(People v. Gutierrez, supra, F062970.) On May 25, 2008, Gutierrez asked for it back.
He, defendant, and the cousin then drove to a barbecue in Turlock. Although neither
Villanueva’s name nor the wedding reception was mentioned during the drive, defendant
said maybe somebody would get in a fight. (Ibid.)
Defendant and Gutierrez were already at the location of the barbecue when
Villanueva arrived. Villanueva told defendant he wanted to “squash it” (let it go) and did
not want any problems. He extended his hand, but defendant refused to shake it.
Defendant looked angry. Villanueva followed him to the backyard of an abandoned
house next door, removing his hat, jacket, and gold chain as he went. (People v.
Gutierrez, supra, F062970.) Although neither Gutierrez nor anyone else followed
defendant and Villanueva, Gutierrez was pacing quickly back and forth by the fence of
the abandoned house. He suddenly ran to the back, and, within seconds, witnesses heard
1 The facts of the underlying criminal case are derived from this court’s opinion in
People v. Gutierrez, et al. (Aug. 26, 2013, F062970) [nonpub. opn.]. The record in that
appeal has been incorporated by reference into the present appeal by prior order.
2 Gutierrez is not a party to this appeal.
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multiple gunshots fired in rapid succession from a single gun. Gutierrez and defendant
immediately fled. Villanueva was found on the ground in the backyard, bleeding to death
from multiple gunshot wounds. (Ibid.)
Gutierrez and defendant were members of Varrio West Side Turlock, the primary
Norteño gang in Turlock. (People v. Gutierrez, supra, F062970.) Villanueva was also an
active Norteño, but may have been in trouble with the gang for going to the aid of a
dropout (Perez) against active gang members at the wedding reception. (Ibid.)
Following a joint jury trial, defendant and Gutierrez were convicted of first degree
murder (Pen. Code,3 § 187, subd. (a)), during the commission of which a principal
personally and intentionally discharged a firearm and proximately caused death
(§ 12022.53, subds. (d) & (e)(1)), and which was committed for the benefit of or in
association with a criminal street gang (§ 186.22, subd. (b)(1)). Following a bifurcated
court trial, each was found to have suffered a prior serious felony conviction that was also
a strike. (§ 667, subds. (a) & (d).) Each was sentenced to a total term of five years plus
75 years to life in prison and ordered to pay restitution and various fees, fines, and
penalties. (People v. Gutierrez, supra, F062970.)
By opinion filed August 26, 2013, we affirmed the judgments in their entirety.
(People v. Gutierrez, supra, F062970.) In so doing, we rejected joint claims that
prejudicial error occurred in the admission of evidence, insufficient evidence supported
the gang enhancement, the prosecutor committed prejudicial misconduct, and the trial
court erred by imposing the maximum restitution fine over objection, without holding a
hearing on ability to pay. We also rejected defendant’s challenge to security measures
enacted during his testimony at trial, his claim the jury instructions erroneously failed to
require the jury to make a finding of his mens rea separate from that of the perpetrator,
3 All statutory references are to the Penal Code.
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and his challenge to the constitutionality of section 12022.53, subd. (e). (People v.
Gutierrez, supra, F062970.)
On January 18, 2019, defendant filed a petition for resentencing pursuant to
section 1170.95. In it, he asserted he was convicted of murder pursuant to the felony-
murder rule or the natural and probable consequences doctrine, and that he could not now
be convicted of murder because of changes made to sections 188 and 189, effective
January 1, 2019. Counsel was appointed for defendant, the district attorney was directed
to file a response to the petition, and the matter was set for hearing.
On June 12, 2019, a hearing was held before the judge who presided at trial and
sentenced defendant. Counsel for both parties stipulated defendant was convicted as a
direct aider and abettor; hence, he did not meet the prima facie eligibility requirements
for resentencing under section 1170.95. As a result, the petition was denied.
Defendant filed a timely notice of appeal.
APPELLATE COURT REVIEW
Defendant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also
includes the declaration of appellate counsel, stating that defendant was advised he could
file his own brief with this court. By letter dated March 4, 2020, we invited defendant to
submit additional briefing.
Defendant replied in a letter and raised three claims: (1) The jury instruction on
first degree murder was vague and did not tell the jury that to find defendant guilty of
first degree murder, he had to have the same state of mind as the direct perpetrator and
could not be convicted just because he was present at the scene of the crime;
(2) Premeditation and deliberation could not be found, because defendant and Gutierrez
were attending a barbecue and were at the scene of the crime a substantial amount of time
before the victim arrived, and a murder cannot be premeditated when a person has no
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idea who will be attending the event; and (3) Defendant’s cousin testified that on the way
to the barbecue, there was no discussion of killing, but only that maybe a fight would
happen; thus, the perpetrator made a heat of the moment decision and defendant was
clueless concerning the perpetrator’s actions, or, at the very least, defendant did not have
the same state of mind as the perpetrator.
Defendant’s claims do not go to the propriety of the trial court’s ruling on his
section 1170.95 petition, but rather amount to claims of instructional error occurring, and
insufficiency of the evidence presented, at trial. “[W]here a criminal defendant could
have raised an issue in a prior appeal, the appellate court need not entertain the issue in a
subsequent appeal absent a showing of justification for the delay.” (People v. Senior
(1995) 33 Cal.App.4th 531, 538.) The issues defendant now raises were, or could have
been, raised in his appeal in case No. F062970. As he presents no justification for the
delay, we will not entertain them now.
The jury instructions given at defendant’s trial show he was convicted as a direct
aider and abettor. (See People v. Gutierrez, supra, F062970.) Section 1170.95 permits a
person to file a petition to have his or her murder conviction vacated only if he or she was
convicted of felony murder or murder under a natural and probable consequences theory.
(§ 1170.95, subd. (a).) Defendant does not meet either requirement for eligibility.
After independent review of the record, we conclude there are no reasonably
arguable legal or factual issues. Defendant’s request to proceed on his appeal with
different appointed counsel is denied.
DISPOSITION
The judgment is affirmed.
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