People v. Bruno-Martinez CA3

Filed 8/30/24 P. v. Bruno-Martinez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C099997

Plaintiff and Respondent, (Super. Ct. No. 07F08138)

v.

JOSEPH BRUNO-MARTINEZ,

Defendant and Appellant.

Defendant Joseph Bruno-Martinez appeals the trial court’s denial of his petition for resentencing under Penal Code1 section 1172.6. Counsel for defendant filed a brief seeking our independent review under People v. Delgadillo (2022) 14 Cal.5th 216 to determine whether there are any arguable issues on appeal. Separately, defendant filed a supplemental brief asserting the trial court’s use of the kill zone instruction allowed the

1 Further undesignated statutory references are to the Penal Code.

1

jury to convict him of attempted murder without the requisite intent to kill. Because we have previously rejected defendant’s argument in his most recent writ petition, we affirm. FACTUAL AND PROCEDURAL BACKGROUND The facts of the underlying offense are set forth in the appellate opinion from defendant’s original appeal. (People v. Bruno-Martinez (Mar. 30, 2010, C060660) [nonpub. opn.] (Bruno-Martinez I).)2 Briefly summarized, as the victim and three friends left a birthday party at a local restaurant, defendant approached the victim from behind and said something about the victim’s tattoo and asked where he was from. (Ibid.) The victim responded he was not a gang member and headed towards his friend’s car, while defendant pulled out a handgun from under his shirt. (Bruno-Martinez I, supra, C060660.) The victim and his friends got into their car but could not start it. Defendant shot once into the air, and then into the car, while the victim and his friends got out of the car. In all, seven shots were fired from two guns. The car was hit many times, but neither the victim nor his friends were hit. (Bruno-Martinez I, supra, C060660.) At trial, the court indicated to counsel it would provide the CALCRIM No. 600 jury instruction for “attempted murder without [the] optional paragraph relating to a kill zone theory.” (Bruno-Martinez I, supra, C060660.) The parties agreed and the prosecutor indicated he was not pursuing a kill zone theory. Consequently, the jury was instructed that for attempted murder, the prosecution must prove: (1) “ ‘defendant took direct but ineffective steps toward killing another person,’ ” and (2) “ ‘defendant intended to kill that person.’ ” (Ibid.)