People v. Brizuela CA4/1

Filed 7/19/21 P. v. Brizuela CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D078376

Plaintiff and Respondent,

v. (Super. Ct. No. SCN317396)

KEVIN BRIZUELA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2016, a jury convicted Kevin Brizuela of two counts of first degree

murder (Pen. Code,1 §§ 187, subd. (a), 190.2, subd. (a)(3)) and two counts of attempted premeditated murder (§§ 664, 187, subd. (a), 189). The jury also

1 All further statutory references are to the Penal Code unless otherwise specified.

found true that Brizuela had discharged a firearm causing death or bodily injury (§ 12022.53, subds. (d) & (e)(1)). Brizuela was sentenced to an indeterminate term of 100 years to life in prison. Brizuela appealed and this court issued an unpublished opinion in October 2018. (People v. Brizuela (Oct. 11, 2018, D071364) [nonpub. opn.].) In that opinion, we conditionally reversed the judgement and remanded the case to the trial court to conduct a hearing to determine if the case should be remanded to the juvenile court since Brizuela was 17 years old at the time of the offenses. We also directed the trial court to exercise its discretion to consider whether to strike the firearm enhancement. On remand, the court held a fitness hearing (Welf. & Inst. Code, § 707). The trial court declined to remand the case to the juvenile court and denied the motion to strike the firearm enhancement. The court reinstated the original judgment and sentence. Brizuela 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 Brizuela the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS The facts of the offenses are set forth in our prior opinion and do not need to be repeated here. Rather we will set forth the summary of material