People v. Olvera CA4/2

Filed 7/28/23 P. v. Olvera CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E080269
v. (Super.Ct.No. CR28041)
DAVID ARENAS OLVERA, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
David A. Olvera, Jr., in pro. per.; Stephanie M. Adraktas, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Defendant and appellant David Arenas Olvera, Jr., appeals from the trial court’s
order denying his petition for resentencing pursuant to Penal Code1 former section
1170.95 (now renumbered to section 1172.6). For the reasons set forth post, we affirm.
STATEMENT OF THE CASE
On November 10, 1987, an information charged defendant with attempted murder
under sections 664 and 187 (count 1), and assault with a firearm under section 245,
subdivision (a)(2) (counts 2 and 3). As to count 1, the information also alleged that
defendant, with the intent to inflict injury, inflicted great bodily injury under section
12022.7. As to all counts, the information further alleged that defendant personally used
a firearm causing great bodily injury under sections 12022.5 and 1192.7, subdivision
(c)(8).
On June 14, 1989, defendant pled guilty to attempted murder (count 1) and assault
with a firearm (count 2).2 As to both counts, defendant admitted that he used a firearm
causing great bodily injury under section 12022.5. Moreover, defendant admitted that he
was armed with a firearm as to the accessory after the fact count.
Thereafter, the trial court sentenced defendant to a total term of 15 years and eight
months in prison, as follows: the upper term of nine years for attempted murder (count
1), one-year consecutive term for assault with a firearm (count 2), and eight months
consecutive for accessory after the fact. The court also ordered a five-year consecutive
1 All further statutory references are to the Penal Code unless otherwise specified.
2 On November 9, 1989, defendant pled guilty to accessory after the fact under
section 32 in another case, case No. CR28662 (consolidated case, different victim).
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term under section 12022.5 for the firearm enhancement as to count 1. The court then
stayed the remaining enhancement sentences.
On October 19, 2021, defendant filed a petition to vacate his attempted murder
conviction in propria persona. On January 10, 2022, the trial court issued an order to
show cause requiring the People to show cause why defendant was not entitled to relief.
On April 22, 2022, the People filed opposition arguing that the preliminary
hearing transcripts for this case and the consolidated case established beyond a
reasonable doubt that defendant had committed attempted murder with express malice.
At the hearing on the petition on May 18, 2022, the trial court denied defendant’s
petition.
On June 3, 2022, defendant filed a second pro. per. petition for resentencing under
section 1170.95. On July 1, 2022, defendant filed a third pro. per. petition for
resentencing under the same statute. On September 19, 2022, and October 24, 2022,
defendant filed pro. per. requests for rulings on his petitions. On November 18, 2022, the
trial court dismissed the petitions on grounds that the petition had been denied on May
18, 2022, when the court ruled on the first petition.
On November 30, 2022, defendant filed a timely notice of appeal.
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STATEMENT OF FACTS
A. DEFENDANT’S GUILTY PLEAS3
According to the abstract of judgment, defendant pled guilty to (1) attempted
murder under sections 664 and 187 (count 1), and assault with a firearm under section
245, subdivision (a)(2) (count 3), on June 14, 1989; and (2) being an accessory to a
felony under section 32, on November 9, 1989. As to counts 1 and 3, defendant also
admitted special allegations that he used a firearm under section 12022.5, subdivision (a).
B. DEFENDANT’S PETITIONS
On October 19, 2021, June 3, 2022, and July 1, 2022, defendant filed petitions for
resentencing under section 1172.6. In the petitions, defendant alleged that the
information filed against defendant proceeded under a natural or probable consequences
doctrine or other theory under which malice was imputed. Because of the changes made
to sections 188 and 189, he could not now be convicted of attempted murder.
The People filed their opposition to the first petition on April 22, 2022. In the
opposition, the People provided that defendant had personally fired a gun at the victim
about five times, and struck the victim on his chest and arm. Based on the transcripts of
the preliminary hearings and on the evidence of other bad acts tending to support a
3 The reporter’s transcripts of defendant’s guilty plea hearings are not included in
the record. Court reporter Helen Lee (for Susan Schoonover) attested that there are no
notes for the June 14, 1989, attempted murder plea hearing because they “are more than
ten (10) years old and are no longer available for preparation per Government Code
Section 69955(e).” Helen Lee (for Ethel Brooks) attested the same as to the hearing on
November 9, 1989, on the accessory plea. There is also no record of defendant’s written
plea agreement.
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finding of express malice, the prosecutor argued that the People had met their burden of
proof beyond a reasonable doubt.
With the opposition, the People attached the transcripts from the preliminary
hearings in this and the consolidated case, and records from other court cases.
1. ATTEMPTED MURDER PRELIMINARY HEARING TRANSCRIPT
At the preliminary hearing on the attempted murder case, Estanislao Solorio
testified. He stated that defendant had been living in Solorio’s house. At that time,
defendant was dating his younger daughter, Patricia. The day before the charged
incident, Lucy, Solorio’s older daughter, told defendant that he could no longer stay at
their house.
On the morning of August 14, 1987, the day of the attempted murder, Solorio was
in bed at his home in Riverside when he heard Lucy “hollering, like a cry” from the front
of the house. Armed with a gun, Solorio ran down a hall; he saw Lucy and defendant
standing outside. Solorio saw that defendant was pointing a gun at Lucy’s head. When
Solorio approached, defendant pointed his gun at Solorio and said, “ ‘Don’t you get
involved or I’ll kill you.’ ” Solorio asked defendant to put the gun away.
As Solorio retreated into the house, defendant followed him and demanded that
Solorio put his hands in the air. After Solorio closed the door behind him, defendant
fired five shots through the door, striking Solorio on his chest and arm.
2. CONSOLIDATED CASE PRELIMINARY HEARING
The consolidated case related to events that occurred prior to the attempted murder
incident.
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At the preliminary hearing, Officer Sutton testified that on May 10, 1987, he was
working in the Casa Blanca area of Riverside when he was dispatched to Evans Street.
Just prior to receiving the call, Sutton heard eight gunshots fired. When he got to Evans
Street, he saw a person, later identified as Robert Pena, in the driver’s side of a vehicle
with four gunshot wounds to his head; Pena “was lifeless.”
Riverside Police Officer McBride testified that a gun, consistent with the murder
weapon that killed Pena, was registered to defendant. Patricia Solorio directed the
officers to a lake where defendant had thrown the gun; the gun was recovered.
Patricia testified that defendant had confessed to her that he killed Pena. She
accompanied defendant when he disposed of his gun. She was at her house when
defendant shot her father on August 14, 1987.
The day before defendant shot Solorio in the underlying case at issue, defendant
kicked and punched Patricia. Patricia and Solorio reported the incident to the police.
C. THE TRIAL COURT’S ORDERS
At a hearing on May 18, 2022, the trial denied defendant’s motion to vacate his
attempted murder conviction under section 1172.6.
At the hearing on defendant’s other two petitions on November 18, 2022, the
prosecutor argued that the petitions were the same as the first one defendant filed, which
the court had denied. Defense counsel stated: “I confirm with what [the prosecutor] said.
I’ll submit with a formal objection.” Therefore, the trial court dismissed the petitions
filed on June 3, 2022, and July 11, 2022. It stated: “At this point in time, the most
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current petition will be denied, as the issue was previously ruled—it was previously ruled
that [defendant] was ineligible for relief; and there, this petition is also denied.”
DISCUSSION
Counsel has filed a brief under the authorities of People v. Wende (1979) 25
Cal.3rd 436, Anders v. California (1967) 386 U.S. 739, and People v. Delgadillo (2022)
14 Cal.5th 216 (Delgadillo). In the brief, pursuant to Anders v. California (1967) 386
U.S. 738, appellate counsel has identified the following issue to assist the court in its
search of the record for error:
“Did the trial court have jurisdiction to reconsider its prior denial of the section
1172.6 petitions (made on May 18, 2022) where there has been no significant change in
the law and where trial counsel had been appointed after the original petition was filed?”
On May 4, 2023, we sent notice to defendant regarding the filing of a Delgadillo
brief, as follows: “Counsel for appellant has filed a brief stating no arguable issues can
be found. Because this is an appeal from the denial of a post-conviction proceeding, this
court is not required to conduct an independent review of the record but may do so in its
discretion. (People v. Delgadillo (2022) 14 Ca1.5th 216 . . .; People v. Serrano (2012)
211 Ca1.App.4th 496.) The appellant is personally granted 30 days to file any
supplemental brief deemed necessary. If appellant files a supplemental brief, this court
will evaluate the specific arguments presented in that brief in its opinion. (Delgadillo,
. . . at p. 165.) Failure to timely file a supplemental brief may result in the dismissal of
the appeal as abandoned.”
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On June 5, 2023, defendant filed a 10-page handwritten supplemental brief. In the
brief, defendant appears to challenge whether an accessory to murder under section 32 in
his consolidated case, not the underlying case to the appeal, affects his attempted murder
conviction: Whether “the definition of accessories . . . is direct aiding & abetting or
aiding and abetting natural, and probable consequences doctrine or major participant of
the underlying felony and acted with reckless indifference to human life or acted with
malice aforethought that imputed express malice based solely on participation in a crime
[of attempted murder].” Moreover, defendant contends that he “only used his firearm in
self defense to scare” the victim. And that “[t]his incident was a result of the police’s
attempt to entrap appellant by tainting, planting unreliable testimony by the hearsay
witnesses to the murders” in the consolidated case, case No. CR28662. Defendant’s
arguments regarding the consolidated case, however, do not affect the trial court’s denial
of his section 1172.6 petition pertaining to the attempted murder of Solorio. The
consolidated case involved the murder of Pena, wherein defendant admitted he was
armed with a firearm as an accessory to murder.
Nonetheless, we will address whether the court erred in denying defendant’s
petition. Section 1172.6 limits who may seek resentencing to the following: “A person
convicted of felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter may file a petition with the court.” (§ 1172.6,
subd. (a), italics and boldface added.) Section 1172.6, therefore, only applies to
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defendants convicted of attempted murder if they were convicted under the natural and
probable consequences doctrine.
In this case, at the hearing on the first petition, the trial court noted that it had
“reviewed the People’s brief in which they attached the exhibits and cite to the reporter’s
transcripts, specifically with respect to the preliminary hearing testimony.” The court
also noted that defendant did not file a response to the opposition brief. Defense counsel
responded that she would not be filing a response brief. The court then stated: “There
are several things that are abundantly clear by the wealth of the evidence that was
presented, and that is, the defendant was the actual shooter in the case and that he did in
fact shoot and cause great bodily injury to the victim in this case.” (Italics added.) After
further discussion with the People, the court stated: “The Court does find the People
have carried their burden of proving beyond a reasonable doubt that the defendant is
guilty of attempted murder of the victim, which was his girlfriend’s father who
intervened, and that he in fact shot several times at the gentleman and struck him with
one of the bullets.”
Therefore, the uncontroverted evidence showed that defendant was the sole actual
shooter in the attempted murder of Solorio, thus establishing his guilt as the actual
perpetrator, whose criminal liability was based on his own acts and mental state, not any
theory of vicarious liability.
Based on the foregoing, and our independent review of the record, we find that the
trial court correctly determined defendant is ineligible for relief under section 1172.6.
(Delgadillo, supra, 12 Cal.5th at p. 233.)
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DISPOSITION
The order denying defendant’s petition for resentencing under section 1172.6 is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
CODRINGTON
J.
MENETREZ
J.
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