People v. Bruno CA3 ( 2023 )

Filed 12/11/23 P. v. Bruno 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C098283
Plaintiff and Respondent, (Super. Ct. No. 12F06363)
v.
ALEX JAMES BRUNO,
Defendant and Appellant.
Defendant Alex James Bruno appeals from the denial of his postconviction
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petition seeking resentencing pursuant to Penal Code section 1172.6. Counsel for
defendant filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v.
Delgadillo (2022) 14 Cal.5th 216, asking this court to exercise its discretion to review the
entire record for arguable issues on appeal. Defendant also filed a supplemental brief in
propria persona. We will affirm.
I. BACKGROUND
In June 2015, a jury found defendant guilty of attempting to murder two people.
The trial court had instructed the jury: “To prove that defendant is guilty of attempted
1 Undesignated statutory references are to the Penal Code.
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murder, the People must prove that: [¶] 1. The defendant took at least one direct but
ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended
to kill that person.” The court did not instruct the jury on any other theory of attempted
murder. The jury also found defendant had personally and intentionally discharged a
firearm during the attempted murders, thereby proximately causing great bodily injury to
each victim. The trial court sentenced defendant to 61 years four months to life in state
prison.
In July 2022, defendant filed a petition for resentencing pursuant to
section 1172.6, alleging that he could no longer be convicted of attempted murder
because of changes made to the definition of murder in sections 188 and 189. (See Stats.
2018, ch. 1015, §§ 2-3.) The trial court appointed counsel to represent defendant. The
People filed a response to defendant’s petition, arguing defendant was ineligible for relief
under section 1172.6 because the jury’s findings precluded any possibility that defendant
could no longer be convicted of attempted murder. Defendant filed a reply addressing
the preclusive effect of the firearm enhancements but not addressing the attempted
murder verdict.
The trial court held a hearing and determined defendant had failed to make a prima
facie case that he was entitled to relief because the jury had not been instructed on a
theory of attempted murder eliminated by the changes to sections 188 and 189. Because
defendant could still be convicted of attempted murder under the only theory presented to
the jury, the trial court denied defendant’s petition. Defendant timely appealed from the
order.
II. DISCUSSION
Under Delgadillo, we must “evaluate the specific arguments presented in
[defendant’s supplemental brief],” but we are not compelled to undertake an
“independent review of the entire record to identify unraised issues.” (People v.
Delgadillo, supra, 14 Cal.5th at p. 232.) Defendant argues: (1) his appointed counsel
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performed ineffectively by failing to “raise any relevant facts” in support of his
resentencing petition; and (2) section 1172.6 violates the right to equal protection of the
laws or is otherwise unconstitutional. We disagree.
When a defendant files a petition for resentencing under section 1172.6, the trial
court proceeds in two stages: a prima facie stage and then, if necessary, an evidentiary
stage. First, “the court must evaluate the petition ‘to determine whether the petitioner has
made a prima facie case for relief.’ ” (People v. Strong (2022) 13 Cal.5th 698, 708;
§ 1172.6, subd. (c).) If the defendant has made a prima facie showing of entitlement to
relief, the trial court shall issue an order to show cause. (§ 1172.6, subd. (c).) Then, the
trial court must hold an evidentiary hearing at which the prosecution bears the burden of
proving, “ ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted
murder’ ” under the recently amended versions of sections 188 and 189. (Strong, at
pp. 708-709; § 1172.6, subd. (d).)
Defendant’s ineffective assistance argument fails because his petition was denied
at the prima facie stage of the process. The trial court found the jury in defendant’s trial
had not been instructed on any theory of attempted murder that had been invalidated by
the changes to sections 188 and 189. This meant defendant could still be convicted of
attempted murder under the only theory tried, so he failed “to establish any grounds for
relief.” Accordingly, the trial court declined to issue an order to show cause or hold an
evidentiary hearing. Defendant does not challenge this ruling. Because defendant’s
petition did not make it to the evidentiary stage, we cannot fault his lawyer for failing to
“raise any relevant facts” or “thoroughly investigate this case for a defense.”
Defendant has failed to fully develop his argument that section 1172.6 denies
equal protection of the laws or is otherwise unconstitutional. “To demonstrate error,
appellant must present meaningful legal analysis supported by citations to authority and
citations to facts in the record that support the claim of error.” (In re S.C. (2006)
138 Cal.App.4th 396, 408.) To demonstrate that “a statutory distinction is so devoid of
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even minimal rationality that it is unconstitutional as a matter of equal protection,”
defendant must establish that the law affects two or more similarly situated groups in an
unequal manner and must overcome the presumption that the law “bears a rational
relationship to a legitimate state purpose.” (People v. Chatman (2018) 4 Cal.5th 277,
289.)
The closest defendant comes to analyzing section 1172.6 is asserting that the
“Attorney General has conceded on several cases over the course of [two] years” that
section 1172.6 denies equal protection and that “the lower state court’s [sic] have argued
in several cases since the passing of [section] 1172.6 [that it] is not ‘constitutional.’ ”
Defendant has not identified or provided any citations to these cases. Nor has defendant
explained how he is similarly situated to a group benefited by section 1172.6 or
overcome the presumption that the law has a rational basis. Accordingly, we must reject
defendant’s arguments.
III. DISPOSITION
The order denying defendant’s resentencing petition is affirmed.
/s/
Wiseman, J.*
We concur:
/s/
Robie, Acting P. J.
/s/
Krause, J.
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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