People v. Guerra CA4/2 ( 2024 )

Filed 9/3/24 P. v. Guerra CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
E083151
Plaintiff and Respondent,
(Super.Ct.No. FSB251264)
v.
OPINION
DANNY MONTANA GUERRA,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,
Judge. Affirmed.
Danny Montana Guerra, in pro. per.; and Marta I. Stanton, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Danny Montana Guerra appeals the denial of his request for resentencing under
Penal Code section 1170.91, subdivision (b).1 After his counsel filed a no-issue brief
under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), Guerra filed his own
supplemental brief. We affirm.
BACKGROUND
In 1980 Guerra was convicted of first degree murder, attempted murder, robbery,
and two counts of kidnapping.
In 2023 Guerra petitioned for resentencing under section 1170.91, subdivision (b).
In 2024 the trial court denied Guerra’s petition because his convictions rendered him
statutorily ineligible for resentencing under that provision. Guerra appealed.
ANALYSIS
On Guerra’s request, we appointed counsel to represent him on appeal. Counsel
filed a brief declaring she found no arguably meritorious issues to appeal, setting out a
statement of the case, and asking us to conduct an independent review of the record.
When appealing from a postconviction order a defendant has no constitutional
right to independent review under Anders/Wende2 if appellate counsel cannot identify
any arguable issues. (Delgadillo, supra, 14 Cal.5th at pp. 227, 231.) Nevertheless, the
court must inform the defendant that he may personally file a supplemental brief, and
“[i]f the defendant subsequently files a supplemental brief or letter, the Court of Appeal
1 Unlabeled statutory citations refer to the Penal Code.
2 Anders v. California (1967) 386 U.S. 738 (Anders); People v. Wende (1979) 25
Cal.3d 436 (Wende).
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is required to evaluate the specific arguments presented in that brief and to issue a written
opinion.” (Id. at p. 232.) “If the defendant does not file a supplemental brief or letter, the
Court of Appeal may dismiss the appeal as abandoned.” (Ibid.) Here, after appellate
counsel filed a brief notifying us Guerra’s appeal presented no arguable issues, we
offered Guerra an opportunity to file a personal supplemental brief, and he did.
Section 1170.91, subdivision (b), allows “[a] person currently serving a sentence
for a felony conviction . . . who is, or was, a member of the United States military and
who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress
disorder, substance abuse, or mental health problems as a result of the person’s military
service,” to “petition for a recall of sentence . . . to request resentencing if the
circumstance of suffering from sexual trauma, traumatic brain injury, post-traumatic
stress disorder, substance abuse, or mental health problems as a result of the person’s
military service was not considered as a factor in mitigation at the time of sentencing.”
There is an exclusion, however. Subdivision (c) of that same section states “[t]his
section does not apply to a person convicted of, or having one or more prior convictions
for, an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or an offense requiring registration pursuant to
subdivision (c) of Section 290.” (§ 1170.91, subd. (c).) This “carve-out” provision
excludes those convicted of certain felonies, often called super-strikes, from seeking the
relief section 1170.91, subdivision (b), offers. Such super-strikes include, for instance,
“[a]ny homicide offense, including any attempted homicide offense.” (§ 667,
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subd. (e)(2)(C)(iv)(IV).) Because Guerra was convicted of murder and attempted
murder, he is therefore ineligible for relief.
Guerra argues this carve-out provision’s reference to section 667,
subdivision (e)(2)(C)(iv), is ambiguous. That subdivision is part of a section with
criminal history enhancements, so it does not merely list felonies but contains an
introductory clause that refers to defendants who “suffered a prior serious or violent
felony conviction . . . for any of the following felonies.” (§ 667, subd. (e)(2)(C)(iv),
italics added.) According to Guerra, this means that the section 1170.91, subdivision (c),
carve-out applies only to recidivists, who were convicted of one of the specified crimes
prior to the conviction they now seek resentencing on.
This argument is unavailing. Section 1170.91, subdivision (c), applies to the
convictions listed under section 667, subdivision (e)(2)(C)(iv), not the introductory
language of that subdivision. Section 1170.91, subdivision (c), excludes “a person
convicted of, or having one or more prior convictions for, an offense specified,” in
section 667, subdivision (e)(2)(C)(iv). (§ 1170.91, subd. (c), italics added.) That
language makes clear that it is the list of felonies in the latter subdivision that matters:
whether the defendant is “convicted of” one or has a “prior” conviction for one. When
section 667, subdivision (e)(2)(C)(iv), applies directly it applies only to prior convictions,
but that is irrelevant to how section 1170.91, subdivision (c), incorporates it. There is no
ambiguity here.
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Accordingly, we agree with the trial court that Guerra is statutorily ineligible for
relief under section 1170.91 and affirm its order denying his petition.
DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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