People v. Quiroz CA4/3

Filed 1/5/23 P. v. Quiroz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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, G061569
v. (Super. Ct. No. 02CF3148)
SERGIO QUIROZ, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Elizabeth G. Macias, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
After a prima facie hearing for resentencing pursuant to Penal Code former
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section 1170.95 (now § 1172.6), the trial court denied defendant Sergio Quiroz’s petition
for resentencing. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende), setting forth the facts of the case and requesting we review the
entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed
counsel also identified three potential issues to assist in our independent review. Quiroz
was provided 30 days to file written argument on his own behalf, but he did not do so.
In the interest of justice, we have examined the entire record as well as
appointed counsel’s Wende/Anders brief and find no reasonably arguable issue. (Wende,
supra, 25 Cal.3d 436.) We therefore affirm.
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FACTS AND PROCEDURAL BACKGROUND
In 2004, a jury found Quiroz guilty of premeditated and deliberate
attempted murder (§§ 664, subd. (a), 187, subd. (a)), criminal threats (§ 422), and two
counts of street terrorism (§ 186.22, subd. (a)), all felonies. The jury also found the
attempted murder and criminal threats offenses were committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(A)), and that during the commission of the
attempted murder, Quiroz personally discharged a firearm resulting in great bodily injury
to another (§ 12022.53, subd. (d)). Quiroz was sentenced to a prison term of 25 years to
life on the attempted murder conviction and its related firearm enhancement. A sentence
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Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6,
with no change in text. (Stats. 2022, ch. 58, § 10.) All further statutory references are to
the Penal Code unless otherwise indicated.
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No new evidence was presented at the section 1172.6 prima facie hearing as the trial
court considered only the record of conviction making specific reference to the jury
instructions and verdict forms in the case and specifically excluded consideration of the
preliminary hearing transcript. Additional facts are not available via the prior opinion
from Quiroz’s first appeal, People v. Quiroz (Jan. 27, 2005, G034245) [nonpub. opn.].)
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of life with a minimum parole eligibility of 15 years for the gang enhancement was
imposed consecutively. He received concurrent terms on the remaining offenses. This
court affirmed the judgment on direct appeal.
In December 2021, Quiroz filed a request for resentencing pursuant to
former section 1170.95 and counsel was subsequently appointed for him. The People
filed a response to Quiroz’s petition, requesting the trial court deny the petition while
counsel for Quiroz filed a brief requesting the trial court issue an order to show cause and
conduct an evidentiary hearing on the resentencing request. After considering both briefs
and argument from counsel, the trial court denied the resentencing petition, finding
Quiroz had failed to establish a prima facie showing for relief. A statement of decision
was issued by the trial court on July 13, 2022. Quiroz appealed.
ANALYSIS
Appellate counsel suggests three issues for our consideration in the
Wende/Anders brief. The first issue is whether the procedural protections provided an
appellant under Wende and Anders apply to appeals from orders denying postconviction
relief under section 1172.6. While this appeal was pending, the California Supreme
Court decided People v. Delgadillo (Dec. 19, 2022, S266305) 2022 Cal. LEXIS 7654finding “the procedures set out in Anders and Wende do not apply to an appeal from the
denial of postconviction relief.” (Delgadillo, supra, at p. *10.) However, the court in
Delgadillo set forth “a few basic procedures” courts of appeal should follow when
considering an appeal from the denial of a section 1172.6 petition where appointed
counsel has found no arguable issues to be pursued. (Delgadillo, supra, at p. *20-21.) In
such instances, appointed counsel “should file a brief informing the court of that
determination, including a concise recitation of the facts bearing on the denial of the
petition; and . . . the court should send, with a copy of counsel’s brief, notice to the
defendant, informing the defendant of the right to file a supplemental letter or brief and
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that if no letter or brief is filed within 30 days, the court may dismiss the matter.
[Citations.]” (Delgadillo, supra, at p. *21.) “If the defendant subsequently files a
supplemental brief or letter, the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion.” (Ibid.) If, however,
“the defendant does not file a supplemental brief or letter, the Court of Appeal may
dismiss the appeal as abandoned. [Citation.]” (Id. at pp. *21-*22.) “[T]he Court of
Appeal is not barred from conducting its own independent review of the record” in these
instances, but such review is “wholly within the court’s discretion.” (Id. at p. *22.)
Before Delgadillo was decided, another panel of this court in People v.
Flores (2020) 54 Cal.App.5th 266, 268, also recognized “we are not required to
independently review the record” in a postconviction appeal involving the application of
former section 1170.95. However, “[w]hen we weigh the paramount liberty interests of
petitioner, the modest fiscal and administrative burdens to the courts, and the possible
(while presumably low) risk of a petitioner’s unlawful incarceration due to an unreviewed
meritorious issue on appeal, we lean toward caution. That is although it is not required
under law, we think an appellate court can and should independently review the record on
appeal when an indigent defendant’s appointed counsel has filed a Wende brief in a
postjudgment appeal from a summary denial of a [former] section 1170.95 petition.”
(Flores, supra, 54 Cal.App.5th at p. 274.) Following this court’s reasoning in Flores, we
have conducted such a review in this case and found no arguable issues.
As to appellate counsel’s second and third issues regarding whether the trial
court erred in denying Quiroz’s petition for relief and whether this denial constituted
prejudicial error, respectively, we find no arguable issue.
After receipt of a resentencing petition under section 1172.6, counsel shall
be appointed to represent the petitioner, both parties may file briefs in respect to the
petition, and the trial court shall then “hold a hearing to determine whether the petitioner
has made a prima facie case for relief.” (§ 1172.6, subd. (c).) At such hearing, the court
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may rely on the record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 970-971.)
Here, the relief under section 1172.6 would apply “only to attempted murders based on
the natural and probable consequences doctrine. [Citation.]” (People v. Coley (2022) 77
Cal.App.5th 539, 548.) As indicated in the trial court’s statement of decision, the court
considered the jury instructions and verdict forms, noting the jury was not instructed on a
natural and probable consequences theory and did not receive instructions under a theory
of liability that required malice be imputed to Quiroz for the attempted murder charge.
Using our independent analysis and judgment in a review of the entire
appellate record, we find no arguable issues. Consequently, we affirm the trial court’s
order denying Quiroz’s postconviction relief.
DISPOSITION
The order denying the resentencing petition is affirmed.
MOTOIKE, J.
WE CONCUR:
O’LEARY, P.J.
MOORE, J.
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