People v. Gavaldon CA4/3

Filed 10/21/22 P. v. Gavaldon CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G061575
v. (Super. Ct. No. 01CF1110)
ANTHONY JAY GAVALDON, OPI NION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Cheri T.
Pham, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
The trial court denied defendant Anthony Jay Gavaldon’s Penal Code
section 1170.95 petition seeking to vacate his attempted murder conviction and to be
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resentenced (now Pen. Code, § 1172.6).
Gavaldon filed a notice of appeal. Appointed appellate counsel filed an
opening brief raising no arguable issues. (See People v. Wende (1979) 25 Cal.3d 436(Wende).) Gavaldon did not file a supplemental brief on his own behalf.
In the interests of justice, this court has reviewed the record and found no
arguable issues. (See People v. Flores (2020) 54 Cal.App.5th 266, 268.) Thus, we affirm
the order of the trial court.
I
BRIEF FACTS AND PROCEDURAL HISTORY
In February 2001, Gavaldon was in the backseat of a car. Jose C. was
approaching the car when he saw a person in the front passenger seat holding a gun. Jose
C. heard Gavaldon say, “‘Blast him, dog.’” As Jose C. ran away, he heard five shots, felt
a sharp pain, and realized that he had been hit.
A jury found Gavaldon guilty of attempted murder, and a substantive gang
charge (street terrorism). (§§ 187, subd. (a), 664, 186.22, subd. (a).) The jury found true
allegations the attempted murder was committed with premeditation and deliberation, and
for the benefit of a criminal street gang. (§§ 664, subd. (a), 186.22., subd. (b)(1).) The
jury further found true an allegation Gavaldon vicariously used a firearm. (§ 12022.53,
subd. (d) & (e)(1).) The trial court imposed a total sentence of 40 years to life. This
court affirmed the judgment of conviction on direct appeal. (People v. Gavaldon (Sept.
28, 2005, G034343) [nonpub. opn.].)
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Further undesignated statutory references are to the Penal Code. The Legislature
renumbered former section 1170.95 without substantive change, effective June 30, 2022.
(Stats. 2022, ch. 58, § 10.)
2
In April 2021, Gavaldon filed a section 1170.95 petition. The prosecution
filed a response, which included a copy of the information, the jury’s verdict forms, the
underlying unpublished opinion, and a copy of the jury instructions. The trial court
denied the petition without a hearing. This court reversed because the Legislature had
recently amended the relevant statute to include convictions for attempted murder.
(People v. Gavaldon (Feb. 10, 2022, G060542) [nonpub. opn.].)
In August 2022, the trial court conducted a prima facie hearing on remand.
The trial court denied Gavaldon’s petition: “The jury in this case was never instructed on
the natural and probable consequences theory of liability, so there was absolutely no way
that Mr. Gavaldon was convicted on that theory.[ ] [¶] So, based on that, the Court finds
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he is statutorily ineligible for resentencing under 1170.95. [¶] And, just as a note, in
response to the supplemental brief by the petitioner, the Court is not relying on the
statement of facts in the Court of Appeal’s opinion; but the Record of Conviction is clear
and issuing an Order to Show Cause to reach the same result would be an exercise in
futility. So, therefore, the petition is denied.”
II
DISCUSSION
When appointed counsel has identified no arguable issues on appeal, the
appellate court independently reviews the record for any arguable issues. (Wende, supra,
25 Cal.3d at pp. 441-442.) Generally, “an arguable issue on appeal consists of two
elements. First, the issue must be one which . . . is meritorious. That is not to say that
the contention must necessarily achieve success. Rather, it must have a reasonable
potential for success. Second, if successful, the issue must be such that, if resolved
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It is well established that “the felony-murder rule is inapplicable to attempted murder as
well as aiding and abetting an attempted murder.” (People v. Patterson (1989) 209
Cal.App.3d 610, 614.)
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favorably to the appellant, the result will either be a reversal or a modification of the
judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
In this case, we have reviewed the record on appeal. Based on our
independent analysis, we have found no arguable issues that require further briefing or
argument. (See Wende, supra, 25 Cal.3d at p. 442, fn. 3.)
The first degree attempted murder conviction and the jury instructions are
sufficient to conclude Gavaldon is ineligible for relief under section 1172.6 as a matter of
law. Thus, the trial court did not commit an error by denying Gavaldon’s petition at the
prima facie stage. (See People v. Lewis (2021) 11 Cal.5th 952, 961-970.)
III
DISPOSITION
The order is affirmed.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
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