People v. Pena CA2/6 ( 2024 )

Filed 10/7/24 P. v. Pena 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B334477
(Super. Ct. No. 2011032257)
Plaintiff and Respondent, (Ventura County)
v.
RAFAEL ANGEL PEÑA,
Defendant and Appellant.
Rafael Angel Peña appeals the trial court's post-judgment
order striking his Penal Code section 667.5, subdivision (b)1
enhancement and resentencing him under section 1172.75. We
appointed counsel to represent appellant on appeal. After an
examination of the record, counsel filed an opening brief raising
no issues and requesting that we follow the procedures set forth
in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo).
1 All unmarked statutory references are to the Penal Code.
Appellant filed a supplemental brief, in propria persona. We will
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2012, a jury convicted appellant of continuous sexual
abuse of a child under the age of 14 (§ 288.5, subd. (a), count 1)
and three counts of committing a lewd act upon a child under the
age of 14 (§ 288, subd. (a), counts 2, 3, & 4). The jury found a
multiple victim allegation true. (§ 667.61, subd. (e)(4).)
Appellant admitted serving a prior prison term. (§ 667.5, subd.
(b).) The trial court sentenced him to 15 years to life on each
count plus one year for the prior prison term, for an aggregate
term of 60 years to life plus one year. We affirmed the conviction
in a nonpublished opinion. (People v. Peña (Oct. 23, 2014,
B246480) [nonpub. opn.].)
In 2022, following the passage of Senate Bill 483 (2021-
2022 Sess.), which eliminated enhancements for prior prison
terms, appellant’s case was referred to the sentencing court by
the Department of Corrections and Rehabilitation.
The court appointed counsel for appellant. He filed a
resentencing petition requesting the court strike the one-year
prior prison term enhancement and modify his sentence on
counts 4 and 5 to run concurrently rather than consecutively.
Appellant supported his petition with evidence of his good
behavior while in custody, including academic achievements, as
well as his current health and mobility issues, strong family
support, and post-release plans for housing and employment.
Prosecutors opposed any change in the sentence other than
striking the one-year prior prison term enhancement.
The same judge who presided over appellant’s original trial
and sentencing heard the petition. The court considered all of
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appellant’s evidence, including mitigating factors. It struck the
one-year prior prison term enhancement but otherwise denied the
petition. It resentenced appellant to 60 years to life.
DISCUSSION
Appellant is not entitled to our independent review of the
record pursuant to People v. Wende (1979) 25 Cal.3d 436, or its
federal constitutional counterpart, Anders v. California (1967)
386 U.S. 738 [18 L.Ed. 2d 493], because he appeals an order
regarding postconviction relief rather than his underlying
criminal conviction. (Delgadillo, supra, 14 Cal.5th at pp. 221-
222, 230; see People v. Kelly (2006) 40 Cal.4th 106, 119
[independent judicial review mandated by Anders applies only to
first appeal as of right]; People v. Serrano (2012) 211 Cal.App.4th
496, 503.) He is nevertheless entitled to our consideration of the
contentions raised in his supplemental brief. (See Delgadillo, at
p. 232; Serrano, at p. 503.)
Appellant’s supplemental brief lacks any formal legal
arguments and appears, primarily, to challenge a conviction he
considers wrongful. He contends his defense attorney provided
ineffective assistance by failing to present exculpatory evidence
and to raise defenses based on lack of jurisdiction and the statute
of limitations. He laments following his attorney’s advice not to
testify at trial. Appellant claims the sentencing court mistakenly
stated he had four prior prison terms (he had three), that he was
on parole when some of these crimes were committed, and that he
had not yet paid any restitution. He describes his sentence as
cruel and unusual punishment “on the grounds that I’m
innocent.” None of these claims provide a basis to reverse or
remand the resentencing order.
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Section 1172.75 authorizes the resentencing trial court to
“consider postconviction factors, including . . . the disciplinary
record and record of rehabilitation of the defendant while
incarcerated, evidence [reflecting] whether age, time served, and
diminished physical condition, if any, have reduced the
defendant’s risk for future violence, and evidence that . . .
circumstances have changed . . . so that continued incarceration
is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3).)
The trial court exercised its discretion properly here. It
discussed and considered postconviction factors but “d[id] not find
it is in the interest of justice or supported by the great weight of
the evidence and aggravating factors” to sentence appellant to
concurrent terms. We agree. Our independent review of the
record confirms no arguable issues exist. (Delgadillo, supra, 14
Cal.5th at p. 232.)
DISPOSITION
The trial court’s post-judgment resentencing order is
affirmed.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Patricia Murphy, Judge
Superior Court County of Ventura
______________________________
Olivia Meme, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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