People v. Quezada CA3 ( 2023 )

Filed 7/19/23 P. v. Quezada CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C097156
Plaintiff and Respondent, (Super. Ct. No. CR2012605)
v.
GERMAN YOVANI QUEZADA,
Defendant and Appellant.
Defendant German Yovani Quezada appeals the trial court’s denial of his petition
for resentencing under Penal Code section 1172.6.1/2 Appointed counsel for defendant
asks this court to conduct an independent review of the record to determine whether there
1 Undesignated statutory references are to the Penal Code.
2 Defendant filed this petition under former Penal Code section 1170.95. The Legislature
amended Penal Code section 1170.95 effective January 1, 2022, under Senate Bill
No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551). Effective June 30, 2022, Penal
Code section 1170.95 was renumbered section 1172.6 without substantive change.
(Stats. 2022, ch. 58, § 10.) Although defendant filed his petition under former section
1170.95, we will refer to section 1172.6 for consistency.
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are any arguable issues on appeal, and defendant has filed a supplemental brief. (People
v. Wende (1979) 25 Cal.3d 436; People v. Delgadillo (2022) 14 Cal.5th 216.) We have
considered defendant’s supplemental brief, and we affirm the trial court’s order.
BACKGROUND
In 2012, a jury found defendant guilty of conspiracy to commit attempted murder
(§ 182, subd. (a)(1)), attempted murder (§§ 187, 664), shooting at an inhabited dwelling
(§ 246), and criminal street gang activity (§ 186.22, subd. (a)). The jury also found true
allegations the attempted murder was committed with premeditation and deliberation
(§§ 187, subd. (a), 189, 664); the conspiracy, attempted murder, and shooting at an
inhabited dwelling offenses were committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)); a principal personally discharged a firearm (§ 12022.53, subd.
(e)(1)) as to the attempted murder count; defendant personally and intentionally
discharged a firearm (§ 12022.5, subd. (a)) as to the conspiracy and criminal gang
activity counts; and defendant carried a firearm during the commission of a gang-related
crime (former § 12021.5, subd. (a)) as to all counts.
In January 2022, defendant filed a section 1172.6 petition for resentencing. In the
petition, defendant alleged he was convicted of attempted murder under the natural and
probable consequences doctrine and could not be so convicted today. The trial court
appointed counsel and received briefing from the parties. The trial court later granted a
Faretta3 motion and allowed defendant to represent himself. While the petition was
pending, defendant filed a motion to dismiss his firearm enhancements under
amendments made to sections 12022.5 and 12022.53, which now allow the dismissal of
such enhancements at the time of resentencing.
At the hearing on the petition, the trial court noted a successful petition under
section 1172.6 was a prerequisite to the firearm enhancement motion because the
3 Faretta v. California (1975) 422 U.S. 806.
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enhancements would only be at issue if defendant received a resentencing. The trial
court explained the jury instructions made clear defendant was convicted of deliberate
and premeditated attempted murder and that defendant was not convicted under the
natural and probable consequences doctrine. The trial court denied the petition,
accordingly.
Defendant timely appealed.
DISCUSSION
Defendant’s appointed counsel asks this court to conduct an independent review of
the record to determine whether there are any arguable issues on appeal. (People v.
Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a
supplemental brief, and he has done so.
Our Supreme Court has considered whether the Wende process applies to a trial
court’s order denying a petition for postconviction relief under section 1172.6 and
concluded such procedures are not required. (People v. Delgadillo, supra, 14 Cal.5th at
pp. 221-222.) Our Supreme Court laid out applicable procedures for such cases saying, if
the defendant files a supplemental brief, “the Court of Appeal is required to evaluate the
specific arguments presented in that brief and to issue a written opinion. The filing of a
supplemental brief or letter does not compel an independent review of the entire record to
identify unraised issues.” (Id. at p. 232.)
In his supplemental brief, defendant challenges his firearm enhancements, stating
he currently has a separate case pending in federal court on this issue. He also claims his
attorney should have noted this fact.
To the extent defendant is arguing he received ineffective assistance of counsel,
defendant entered a Faretta waiver and represented himself before the trial court. He
thus cannot complain he received ineffective assistance of counsel. (Faretta v.
California, supra, 422 U.S. at p. 834, fn. 46 [a defendant who elects to represent himself
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cannot thereafter complain that the quality of his own defense amounted to a denial of
“effective assistance of counsel”].)
Defendant also reiterates the argument he made before the trial court as to his
firearm enhancements, where he argued that statutory amendments have given trial courts
the discretion to strike the enhancements at resentencing. As the trial court noted,
however, defendant would not be eligible for any such resentencing unless his section
1172.6 petition was successful. Defendant is not eligible for such resentencing because
his jury was not instructed on any theory under the natural and probable consequences
doctrine, and the jury found the attempted murder was willful, deliberate, and
premeditated. He thus was not convicted under a theory of imputed malice, as required
to obtain a resentencing hearing under section 1172.6. The trial court was correct that it
did not need to consider exercising its discretion to strike the firearm enhancements
because defendant was not eligible for resentencing.
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DISPOSITION
The trial court’s order denying the petition is affirmed.
/s/
HORST, J.
We concur:
/s/
EARL, P. J.
/s/
DUARTE, J.
 Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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