People v. Gandara CA2/5

California Court of Appeal Feb 16, 2021 No. B298394Unpublished

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Holding. The court held that a defendant is not entitled to the appointment of counsel during the initial prima facie stage of a Penal Code section 1170.95 petition, and that the defendant was ineligible for relief as a matter of law because he was the actual killer.

Issues

Whether a defendant is entitled to the appointment of counsel at the prima facie stage of a Penal Code section 1170.95 petition.
Whether the defendant was ineligible for resentencing relief as a matter of law.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“As defendant was not eligible for relief as a matter of law, we affirm.”

“There is no statutory right to counsel at this first, prima facie, stage of review.”

“The facts of the crime as set forth in the appellate opinion, as well as the fact that defendant alone was found to have personally used a firearm, confirm that defendant was, in fact, the actual killer, and therefore ineligible for relief.”

Filed 2/16/21 P. v. Gandara CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B298394

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA005631) v.

GUILLERMO HUMBERTO GANDARA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Roosevelt F. Dorn, Judge. Affirmed. Jonathan E. Demson, under appointment of Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Defendant’s petition for resentencing under Penal Code section 1170.95 was summarily denied.1 As defendant was not eligible for relief as a matter of law, we affirm. FACTUAL AND PROCEDURAL BACKGROUND 1. The Underlying Offense, Conviction, and Appeal2 Following a brief confrontation in which the victim was held against a fence by a group of men, and codefendant Macario Aguirre struck him in the face, the victim walked away and picked up a rock. Aguirre told defendant to shoot him. Defendant slowly and deliberately took out a gun, aimed it at the victim, and shot. The victim ran away, and subsequently died from a gunshot to his left thigh; the bullet had severed his femoral artery. Defendant and Aguirre were charged with a single count of murder (§ 187). It was further alleged that defendant personally used a firearm (§ 12022.5) and a principal was armed (§ 12022, subd. (a)(1)). The case proceeded to jury trial. Defendant offered a defense that did not challenge his identity as the shooter; instead, he argued only that he lacked the intent necessary for murder – suggesting (via a third-party witness) that he had intended only to scare the victim. In argument to the jury, his

People v. Gandara CA2/5

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B298394

GUILLERMO HUMBERTO GANDARA,

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