Filed 8/27/20 P. v. Gutierrez CA2/1
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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  IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                          DIVISION ONE


 THE PEOPLE,                                                            B306036

           Plaintiff and Respondent,                                    (Los Angeles County
                                                                        Super. Ct. No. BA215904)
           v.

 UBALDO MIO GUTIERREZ,

           Defendant and Appellant.




      APPEAL from an order of the Superior Court of Los Angeles
County, Mark S. Arnold, Judge. Dismissed in part and affirmed in
part.
      Richard B. Lennon, under appointment by the Court of
Appeal; and Ubaldo Mio Gutierrez, in pro. per., for Defendant and
Appellant.
      No appearance for Plaintiff and Respondent.

                           ________________________________
                                   I.
       On April 2, 2001, Ki Song was shot in the leg and the
back after an argument with the person who shot him. Song was
hospitalized for a month and underwent two surgeries. (People v.
Gutierrez (Aug. 29, 2003, B159433) [nonpub. opn.] (Gutierrez).)
Song identified appellant Ubaldo Mio Gutierrez as the shooter by
selecting a photograph of Gutierrez from a six-person photographic
display. (Ibid.) Another witness identified Gutierrez as the shooter
in a field show-up. (Ibid.)
       In October 2001, a jury convicted Gutierrez of attempting
to murder Song. (Pen. Code, §§ 187, 664.)1 (Gutierrez, supra,
B159433.) The jury also found true allegations that he personally
and intentionally discharged a firearm causing great bodily injury
(§ 12022.53, subds. (b)–(d)), and personally inflicted great bodily
injury (§ 12022.7, subd. (a)). The court sentenced Gutierrez to
prison for a term of 32 years to life.
       In his direct appeal, Gutierrez challenged the sufficiency
of the evidence based on alleged weaknesses in the evidence
identifying him as the shooter. In August 2003, we rejected
the argument and affirmed the judgment. (Gutierrez, supra,
B159433.)2
       On March 17, 2020, Gutierrez filed in the superior court
a petition for resentencing under section 1170.95 and Senate
Bill No. 620 (Stats. 2017, ch. 682, § 2, p. 5105) (the petition for
resentencing). On the same day, Gutierrez filed in the superior
court a petition for writ of habeas corpus (the habeas petition).
The habeas petition was based in part on alleged new evidence of

      1   Subsequent statutory references are to the Penal Code.
      2 Gutierrez has also filed three habeas corpus petitions in
this court—in 2005, 2011, and 2020—each of which we summarily
denied.



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a gunshot residue test indicating the absence of gunshot residue in
a test kit pertaining to Gutierrez and the failure of Gutierrez’s trial
counsel to present the evidence.
       On March 27, 2020, the trial court denied both the petition
for resentencing and the habeas petition. Regarding the petition
for resentencing, the court stated that Gutierrez was not entitled
to relief under section 1170.95 “because he was the actual shooter”;
and relief under Senate Bill No. 620 was not available “because his
case is final.”
       Regarding the habeas petition, the court stated that “[a]n
inconclusive [gunshot residue] test is not sufficient to overturn the
verdict” and Gutierrez “has not demonstrated that his trial counsel
was ineffective.”
       On April 21, 2020, Gutierrez filed a notice of appeal from the
order denying his petition for resentencing and the order denying
his habeas petition.

                                  II.
       We appointed appellate counsel for Gutierrez, who filed a
brief setting forth the pertinent procedural history and a summary
of relevant facts, and raising no issues on appeal. Counsel requests
that we “follow the procedures set forth in People v. Serrano
(2012) 211 Cal.App.4th 496.” Counsel also notified Gutierrez
that he would be filing a brief, that Gutierrez was entitled to file
a supplemental brief with this court, and that counsel remained
available to brief any issues upon our request. This court also
notified Gutierrez that he may file a supplemental brief.
       On August 11, 2020, Gutierrez filed a supplemental brief
asserting numerous arguments, which we address below.
       Because Gutierrez appeals from an order denying post-
conviction relief, the procedural protections established in People
v. Wende (1979) 25 Cal.3d 436 do not apply. (People v. Cole




                                   3
(2020) ___ Cal.App.5th ___ [2020 WL 4435275] (Cole).) In Cole,
Division Two of this court recently explained that in a criminal
appeal from a post-conviction order to which Wende does not apply,
counsel who find no arguable issues are required to “file a brief
with the Court of Appeal setting forth (1) a brief statement of
the pertinent procedural history of the case, (2) a brief summary
of the pertinent facts, (3) counsel’s declaration that there are no
reasonably arguable issues to present on appeal, and (4) counsel’s
affirmation that he or she remains ready to brief any issues at the
request of the Court of Appeal.” (Cole, supra, ___ Cal.App.5th ___
[2020 WL 4435275 at p. *7].) Counsel in this case fulfilled these
requirements.
       When, as here, the appellant has filed a supplemental brief,
he is entitled to our evaluation of the arguments presented in that
brief. (See Cole, supra, ___ Cal.App.5th ___ [2020 WL 4435275
at p. *8]; cf. Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544,
fn. 6; id. at pp. 554–555 (dis. opn. of George, C. J.).) We now turn
to those arguments.

                                  III.
      A.    Petition for Resentencing Under Section 1170.95
       The court denied Gutierrez’s petition for resentencing
under section 1170.95 without appointing counsel or setting an
evidentiary hearing because the record of conviction established
that Gutierrez was “the actual shooter.” Gutierrez contends this
was error. We disagree and affirm the order.
       Section 1170.95 was enacted in 2018 together with
amendments to section 188 and 189 “to ensure that murder liability
is not imposed on a person who is not the actual killer, did not
act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f), p. 6674.) Section 1170.95



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allows those “convicted of felony murder or murder under a natural
and probable consequences theory . . . [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts.”
(§ 1170.95, subd. (a).) In determining whether a petitioner has
made a prima facie showing of eligibility under the statute, the
court may consider the record of conviction, including the Court
of Appeal’s opinion in the petitioner’s direct appeal. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 899, review granted Aug. 12,
2020, S263219; People v. Lewis (2020) 43 Cal.App.5th 1128, 1137,
review granted Mar. 18, 2020, S260598.)
       Gutierrez is ineligible for relief under section 1170.95 for
two reasons. First, relief under section 1170.95 is not available
when, as here, the petitioner was convicted of attempted murder,
not murder. (People v. Medrano (2019) 42 Cal.App.5th 1001,
1016-1018, review granted Mar. 11, 2020, S259948; People v.
Larios (2019) 42 Cal.App.5th 956, 970, review granted Feb. 26,
2020, S259983; People v. Munoz (2019) 39 Cal.App.5th 738, 754,
review granted Nov. 26, 2019, S258234; People v. Lopez (2019)
38 Cal.App.5th 1087, 1104–1105, review granted Nov. 13, 2019,
S258175.)3
       Second, even if the statute applies to attempted murderers,
relief is not available to Gutierrez because the record of his
conviction, including our 2003 opinion, establishes that he was
not convicted based on the natural and probable consequences
doctrine or on a felony murder theory; he was, as the court below
stated, “the actual shooter.” (Cf. People v. Tarkington, supra,
49 Cal.App.5th at p. 899, review granted Aug. 12, 2020, S263219


     3  This question is pending before our Supreme Court.
(People v. Lopez, supra, 38 Cal.App.5th 1087; Supreme Ct. Minutes,
Nov. 13, 2019, p. 1623.)



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[person who was actual killer is ineligible for relief under
section 1170.95].) Accordingly, the court did not err in denying
Gutierrez’s petition.

      B.    Senate Bill No. 620
       When Gutierrez committed his crime and up until 2018,
section 12022.53 required the trial court to impose a consecutive
enhancement of 25 years to life if a jury found the defendant
personally and intentionally discharged a firearm in committing
attempted murder. (Former § 12022.53, subds. (a)(1), (18),
(d) & (h); Stats. 2000, ch. 287, § 23, p. 2544.) The Legislature had
expressly prohibited courts from exercising discretionary authority
under “[s]ection 1385 or any other provision of law” to “strike an
allegation under this section or a finding bringing a person within
the provisions of this section.” (Former § 12022.53, subd. (h); see,
e.g., People v. Kim (2011) 193 Cal.App.4th 1355, 1362–1363.)
       In 2017, the Legislature enacted Senate Bill No. 620, which
amended section 12022.53 to permit a trial court, “in the interest of
justice pursuant to Section 1385 and at the time of sentencing, [to]
strike or dismiss an enhancement otherwise required to be imposed
by this section.” (§ 12022.53, subd. (h); Stats. 2017, ch. 682, § 2,
p. 5106.) The grant of authority “applies to any resentencing that
may occur pursuant to any other law.” (§ 12022.53, subd. (h).)
       The amendment took effect in January 1, 2018, and applies
in cases where the judgment is not yet final. (See, e.g., People v.
Chavez (2018) 22 Cal.App.5th 663, 712; People v. Woods (2018)
19 Cal.App.5th 1080, 1089–1091.) The amendment, however,
does not apply when, as here, the judgment was final before the
law went into effect. (People v. Fuimaono (2019) 32 Cal.App.5th
132, 135.) Indeed, trial courts lack jurisdiction to grant relief
under these circumstances and, therefore, an appeal from an order
denying the relief must be dismissed. (People v. Hernandez (2019)




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34 Cal.App.5th 323, 326–327.) Accordingly, we dismiss Gutierrez’s
appeal to the extent it is from the court’s order denying relief under
Senate Bill No. 620.

      C.      Challenges to Sentence Enhancement Under
              Section 12022.53, Subdivision (d)
       In his petition for resentencing, Gutierrez challenged
the imposition of the personal firearm use enhancement under
section 12022.53, subdivision (d). In particular, he contended:
(1) The jury’s true finding on the personal firearm use enhancement
must be reversed because his assault was not committed against
a police officer or firefighter; (2) Section 12022.53 violates the
constitutional rights to equal protection and due process because
it enhances the sentences of those who attempt murder but
not attempted voluntary manslaughter or assault with a deadly
weapon; and (3) Under Apprendi v. New Jersey (2000) 530 U.S. 466
and Blakely v. Washington (2004) 542 U.S. 296, the enhancement
violates proscriptions against double jeopardy and “double
punishments,” and violates the “Ireland merger doctrine.”4
Gutierrez repeats these arguments on appeal.
       It is unclear from Gutierrez’s petition or his supplemental
brief on appeal whether he asserted these arguments in support
of his petition to have the trial court strike the enhancement
under Senate Bill No. 620 or he is asserting that the enhancement
constitutes an illegal sentence that must be stricken regardless
of Senate Bill No. 620. To the extent the arguments are offered to
support the trial court’s discretion under Senate Bill No. 620, they
are now moot in light of our conclusion in the preceding section.
       To the extent the arguments are offered as independent
grounds for striking the enhancement, they were asserted below


      4   See People v. Ireland (1969) 70 Cal.2d 522.



                                    7
without a valid statutory basis for trial court jurisdiction and
Gutierrez has not shown that nonstatutory grounds for motions
to vacate or correct a judgment—such as, the judgment is void
due to a jurisdictional defect in its rendition or the sentence is
unauthorized—apply here. (See generally People v. Thomas (1959)
52 Cal.2d 521, 527; People v. Turrin (2009) 176 Cal.App.4th 1200,
1205; People v. Gallardo (2000) 77 Cal.App.4th 971, 980–982.) The
absence of a jurisdictional basis in the trial court renders the appeal
subject to dismissal. (See People v. Chlad (1992) 6 Cal.App.4th
1719, 1726.)
       Even if Gutierrez’s arguments are cognizable in this appeal,
they are without merit. He contends that the enhancement under
section 12022.53, subdivision (d) must be reversed because he did
not commit assault against a police officer or firefighter. It is true
that in cases of assault, the enhancement is applied only under
certain circumstances, including assault against a police officer or
firefighter. (§ 12022.53, subd. (a)(7).) Gutierrez, however, was not
convicted of assault; he was convicted of attempted murder. The
enhancement applies to any person who is convicted of a felony
specified in subdivision (a) of section 12022.53, and that subdivision
includes attempted murder. (§ 12022.53, subd. (a)(1) & (18).) The
enhancement thus applies to Gutierrez’s conviction.
       Gutierrez further contends that section 12022.53 violates
his constitutional right to equal protection of the law because
it enhances the sentences of those who attempt murder but
not attempted voluntary manslaughter or assault with a deadly
weapon. The argument could have been raised on direct appeal
and, for that reason, cannot be asserted by subsequent motion on
or appeal from the denial of that motion. (See People v. Thomas,
supra, 52 Cal.2d at p. 527.) Moreover, contrary to Gutierrez’s
assertion, the “strict scrutiny standard [for evaluating equal
protection arguments] does not apply because section 12022.53,



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subdivision (d) ‘targets no identifiable suspect class, nor impinges
upon any identifiable fundamental right. It merely increases a
penalty.’ ” (People v. Vallejo (2013) 214 Cal.App.4th 1033, 1044,
fn. 4.) Under the applicable rational relationship standard, the
Legislature could rationally decide to punish attempted murder
more severely than voluntary manslaughter or assault with a
deadly weapon.
       Gutierrez further contends that the imposition of
the sentence enhancement in his case violates the principles
established in Apprendi v. New Jersey, supra, 530 U.S. 466 and
Blakely v. Washington, supra, 542 U.S. 296. These cases stand
for the proposition that, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” (Apprendi v. New Jersey,
supra, 530 U.S. at p. 490; Blakely v. Washington, supra, 542 U.S.
at p. 301.) This principle was satisfied in this case because the facts
required to establish the enhancement were expressly found by the
jury beyond a reasonable doubt.
       Gutierrez argues that the sentence enhancement under
section 12022.53, subdivision (d), violates the double jeopardy
clauses of our state and federal constitutions. The argument
is without merit because the enhancement does not constitute
a separate crime. (People v. Gonzalez (2008) 43 Cal.4th 1118,
1130; Plascencia v. Alameida (9th Cir. 2006) 467 F.3d 1190, 1204.)
Nor does the statutory proscription against multiple punishments
(§ 654) bar imposition of the sentence enhancement. (See People v.
Mixon (1990) 225 Cal.App.3d 1471, 1486.)
       Lastly, the so-called Ireland merger doctrine does not apply
because that doctrine applies in cases involving second degree
felony murder. (People v. Chun (2009) 45 Cal.4th 1172, 1200.)
Gutierrez was not convicted on that theory.



                                  9
      D.    Appeal From Denial of Habeas Petition
       Gutierrez’s notice of appeal states that he is appealing from
the trial court’s denial of his habeas petition, as well as from the
denial of his petition for resentencing. As our Supreme Court
recently explained, “in noncapital cases, if the superior court
denies a petition for a writ of habeas corpus, the petitioner
has no statutory right to appeal. Instead, the petitioner must
file a new, original petition, generally in the Court of Appeal.”
(Robinson v. Lewis (2020) 9 Cal.5th 883, 895; see also In re Clark
(1993) 5 Cal.4th 750, 767, fn. 7 [“no appeal lies from the denial of
a petition for writ of habeas corpus”].) We therefore dismiss the
appeal to the extent the notice of appeal is from the order denying
his habeas petition.
       Although we may treat his appeal as the filing of a new
habeas petition in this court (see People v. Gallardo, supra,
77 Cal.App.4th at p. 986), we need not take that step in this
case because on April 30, 2020, nine days after filing his notice of
appeal in this case, Gutierrez filed a habeas petition in this court
on the same grounds asserted in his superior court habeas petition.
We have denied that petition by separate order. (In re Ubaldo
Gutierrez (May 14, 2020, B305680) [summarily denying petition].)




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                          DISPOSITION
      The order denying Gutierrez’s petition for resentencing is
affirmed.
      The appeal from the denial of Gutierrez’s petition for writ
of habeas corpus is dismissed.
      NOT TO BE PUBLISHED.




                                          ROTHSCHILD, P. J.
We concur:




                  BENDIX, J.




                  SINANIAN, J.*




      *Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.



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