People v. Gudino CA2/5

Filed 6/16/23 P. v. Gudino CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B324816
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA133041)
v.
MANUEL GUDINO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Teri Schwartz, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.
No Appearance for Plaintiff and Respondent.
_____________________
Manuel Gudino appeals the trial court’s order denying his
petition for vacatur of his murder conviction and resentencing
1
under Penal Code section 1172.6.
In 2016, Gudino was convicted of one count of first degree
murder (§ 187, subd. (a); count 1) with an enhancement for
personal discharge of a firearm causing death (§ 12022.53, subd.
(d)), and possession of a firearm by a felon (§ 29800, subd. (a)(1);
count 2). Gudino admitted that he suffered a prior strike
conviction within the meaning of the Three Strikes law (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)). He was sentenced to 50
years to life in count 1, calculated as 25 years to life each for the
murder conviction and firearm enhancement, plus a concurrent
two-year term in count 2, and a consecutive term of five years
pursuant to section 667, subdivision (a)(1). The trial court struck
the prior strike conviction for purposes of the Three Strikes law
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
In 2017, another panel of this court affirmed the
convictions. (People v. Gudino (Mar. 29, 2017, No. B271693)
[nonpub. opn.].)
In 2018, Senate Bill No. 1437 (2017–2018 Reg. Sess.) was
enacted. The legislation amended sections 188 and 189, and
added former section 1170.95 (now § 1172.6). (Stats. 2018, ch.
1015, §§ 2–4.) Senate Bill No. 1437 limited application of the
felony murder rule and eliminated murder based on the natural
and probable consequences doctrine. Through former section
1170.95, Senate Bill No. 1437 also created a procedure by which a
defendant previously convicted of murder under either of those
1
All further statutory references are to the Penal Code.
2
theories could file a petition for resentencing. Section 1170.95
became effective on January 1, 2019.
In 2022, Gudino filed his section 1172.6 petition.2 The trial
court appointed counsel and held a hearing. The court denied
Gudino’s petition for failure to make a prima facie case because
the jury found Gudino was the actual killer. Gudino timely
appealed.
Gudino’s counsel filed a brief indicating she could find no
arguable issues to raise on appeal and requesting that this court
(1) inform Gudino of his right to file a supplemental brief; and (2)
exercise our discretion to conduct an independent review of the
record. (People v. Delgadillo (2022) 14 Cal.5th 216, 231–232.)
After receiving notice, Gudino personally filed a brief
raising two issues: (1) his sentence should be reduced pursuant
to recently enacted Senate Bill No. 4083, and (2) the trial court’s
imposition of a term of 25 years to life for the firearm
enhancement is cruel and unusual punishment.
We reject Gudino’s arguments, and we find that appellate
counsel correctly concluded there are no arguable issues. A
petition for resentencing filed pursuant to section 1172.6 is
limited to the issues implicated by that statute. (See, e.g., People
v. DeHuff (2021) 63 Cal.App.5th 428, 438.) Neither of Gudino’s
arguments falls within the scope of section 1172.6. Gudino could
have raised the issue of cruel and unusual punishment in his
direct appeal, but did not. Moreover, Gudino was convicted and
sentenced in 2016, prior to the January 1, 2022 effective date of
Senate Bill No. 4083, and his case has been final for some time.
Finally, the legislation is not applicable to Gudino’s case. Senate
2 EffectiveJune 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
3
Bill No. 4083 provides relief for certain sentence enhancements
imposed pursuant to section 667.5, subdivision (b), and section
11370.2 of the Health and Safety Code. (Stats. 2018, ch. 728,
§§ 2–3.) Gudino was not sentenced under either section.
DISPOSITION
The trial court’s order denying the petition for resentencing
under section 1172.6 is affirmed.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
BAKER, Acting, P. J.
KIM, J.
4