People v. Nunez CA2/6 ( 2023 )

Filed 6/29/23 P. v. Nunez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B324488
(Super. Ct. No. TA084751)
Plaintiff and Respondent, (Los Angeles County)
v.
JORGE NUNEZ,
Defendant and Appellant.
Jorge Nunez appeals the denial of his petition for
resentencing. (Pen. Code, § 1172.6.)1 We appointed counsel for
Nunez for this appeal. Counsel was unable to find any arguable
issues to brief and she filed an opening brief under People v.
Delgadillo (2022) 14 Cal.5th 216.) Nunez filed a supplemental
brief. We conclude, among other things, that Nunez has not
shown the trial court erred by denying his petition. We affirm.
A jury convicted Nunez of three counts of attempted
murder, two counts of discharging a firearm at an occupied motor
1 All statutory references are to the Penal Code.
vehicle, and one count of discharging a firearm at an inhabited
dwelling. (§§ 187, subd. (a), 664, 246.) The jury also found that
“a principal personally and intentionally discharged a firearm”
during an incident on Nord Street on May 7, 2006; that Nunez
personally discharged a firearm during an incident on Stockwell
Street on January 29, 2006; and that “the criminal offenses were
committed to benefit a criminal street gang.” (§§ 12022.53,
subds. (b), (c) & (d), 186.22, subd. (b)(1)(C).) The trial court
sentenced Nunez to a prison term of 170 years to life.
In 2011, we affirmed his convictions. (People v. Nunez
(Mar. 2, 2011, B213646) [nonpub. opn.].) We concluded, among
other things, that 1) Nunez “admitted involvement in the
Stockwell Street and Nord Street incidents” to the police on June
1, 2006; 2) his confession to police was properly admitted at trial;
3) he did not show ineffective assistance of counsel; and 4)
sufficient evidence supported the judgment. (Ibid.)
Nunez contends the trial court erred by denying his
resentencing petition because his trial counsel at his criminal
trial was ineffective for not requesting separate trials for the
January 29 and May 7, 2006, incidents. But Nunez has failed to
cite to the record to support the factual basis for this claim.
(People v. Young (1978) 85 Cal.App.3d 594, 608.) But, even so, he
raised this same claim in his prior appeal and we rejected it. We
said, “We reject Nunez’s contentions of ineffective assistance of
counsel because he has not demonstrated prejudice. [A] motion
to sever the counts would have been futile; the counts were of
same nature (attempted murders and discharging a firearm at
occupied vehicles and residences) and involved the same Jeep
Cherokee.” (People v. Nunez, supra, B213646.)
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Nunez contends his intent was innocent and he lacked the
required intent to commit attempted murder. But he does not
cite to the record to support this claim. “Appellant’s statements
in his brief on appeal of what occurred at trial cannot be
considered by us, as these facts are outside the record on appeal.”
(People v. Elkins (1992) 12 Cal.App.4th Supp. 1, 4; see also People
v. Young, supra, 85 Cal.App.3d at p. 608.)
Moreover, the jury rejected Nunez’s claim of alleged
innocent intent. It found Nunez’s attempted murder counts were
“committed willfully, deliberately and with premeditation.” In
their opposition to his petition for resentencing, the People said,
“The judge instructed the jurors on attempted murder. Those
instructions included an explanation that in order to be convicted
of attempted murder the defendant must have ‘intended to kill.’
The phrase ‘willful, deliberate and premeditate’ was also
defined.”
Nunez contends his sentence of 170 years to life is “cruel
and unusual punishment.” But California courts have repeatedly
rejected this claim. (People v. Abundio (2013) 221 Cal.App.4th
1211, 1220-1221: People v. Argeta (2012) 210 Cal.App.4th 1478,
1482.)
Nunez has failed to show trial court error.
DISPOSTION
The order denying the resentencing petition is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. CODY, J.
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Tammy Chung Ryu, Judge
Superior Court County of Los Angeles
______________________________
Ellen M. Matsumoto, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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