People v. Valencia CA2/2

Filed 11/24/20 P. v. Valencia CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B299957

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA402808) v.

CLAUDIA VALENCIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, George Gonzalez Lomeli, Judge. Affirmed.

Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Christopher G. Sanchez, Deputy Attorneys General, for Plaintiff and Respondent. ______________________________

In 2013, defendant and appellant Claudia Valencia was convicted of attempted murder. (Pen. Code, §§ 664, 187, subd. (a).)1 We affirmed the judgment on direct appeal. (People v. Valencia (Oct. 20, 2014, B253431) [nonpub. opn.] (Valencia I).) In 2019, following the enactment of Senate Bill No. 1437 (2017- 2018 Reg. Sess.) (SB 1437), defendant filed a petition for resentencing under section 1170.95. The trial court summarily denied the petition on the grounds that (1) section 1170.95 does not apply to convictions for attempted murder, and (2) SB 1437 and section 1170.95 are unconstitutional. Because defendant was convicted of attempted murder rather than murder, she is ineligible for relief under section 1170.95 as a matter of law. We affirm on that basis. BACKGROUND I. Underlying Attempted Murder Conviction Based on a shooting that took place in 2012, defendant was charged in an amended information filed by the Los Angeles County District Attorney’s Office with attempted murder. (§§ 664, 187, subd. (a).) The amended information also alleged that the offense was committed willfully, deliberately, and with premeditation (§ 664, subd. (a)); was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)); and that a principal used a firearm (§ 12022.53, subds. (b), (c), (d) & (e)(1)). It was further alleged that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), which also constituted a “strike” within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).