People v. Valdez CA4/1

Filed 2/26/21 P. v. Valdez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078240

Plaintiff and Respondent,

v. (Super. Ct. No. SCE333769)

JOSE LUIS VALDEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. Jose Luis Valdez, in pro. per.; and Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2015, a jury convicted Jose Luis Valdez of one count of first degree

murder (Pen. Code,1 § 187, subd. (a)); one count of second degree murder (§ 187, subd. (a)); and one count of conspiracy to commit murder (§ 182, subd. (a)(1)). The jury found true an allegation that Valdez personally and

1 All further statutory references are to the Penal Code.

intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). Valdez was sentenced to an indeterminate term of 65 years to life plus life without parole. Valdez appealed, and in 2017, this court affirmed the judgment in an unpublished opinion. (People v. Valdez (Jan. 31, 2017, D068994) [nonpub.

opn.].)2 In September 2020, Valdez filed a petition for resentencing under section 1170.95. In October 2020, the court denied the petition in a written order. The court stated it had reviewed the record of conviction as well as this court’s opinion in People v. Valdez, supra, D068994. The court found Valdez was the actual killer and therefore had not made a prima facie showing of entitlement to relief. Valdez has filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Valdez the opportunity to file his own brief on appeal, and Valdez has filed a lengthy supplemental brief which we will discuss below. STATEMENT OF FACTS The facts of the offenses have been fully set forth in our prior opinion. (People v. Valdez, supra, D068994.) We will not repeat them here. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court, and in