People v. Bautista CA4/3

Filed 7/13/21 P. v. Bautista CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059737

v. (Super. Ct. No. 06WF2923)

HECTOR ACOSTA BAUTISTA OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Joanna Rehm., under appointment by the Court of Appeal; Hector Acosta Bautista, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Appellant was convicted in 2010 of attempted murder. In an incident resulting from an earlier humiliation of his gang, appellant went with other gang members on a face-saving mission which resulted in one of his confederates firing two shots intended to hit people involved in the earlier incident. Appellant admitted he knew that with a gun being taken for retaliation there was a chance someone could be killed and he was there for backup. He later helped dispose of the gun. The court sentenced appellant to 55 years to life. We affirmed the convictions in 2011 but remanded for resentencing. In October of last year, appellant filed a petition seeking to vacate his attempted murder convictions pursuant to the recently-enacted Penal Code1 section 1170.95, which changed the law pertaining to murder cases. That petition was denied by the trial court on the basis that it did not “set forth a prima facie case for relief under the statute.” The statute provides for relief for petitioners convicted of murder under a felony murder or natural and probable consequences theory. Since appellant was not convicted of murder, the court ruled he was not entitled to relief. He appealed, and we appointed counsel to represent him. Counsel filed a brief which set forth the facts of the case and its procedural history. Counsel did not argue against appellant but advised us she was unable to find issues in the case that had any chance of success. Appellant was invited to express his own objections to the proceedings against him and did so. His complaint is that the court ruled he did not qualify for relief after examining the record. He contends he was entitled to a hearing. He also contends he received inadequate assistance of counsel at his trial in that his attorney failed to challenge the propriety of introduction of his statements under the Miranda decision