People v. Olivo CA3

Filed 10/20/21 P. v. Olivo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C090006

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- 2000-0006217, SF079356A) v.

ABEL OLIVO,

Defendant and Appellant.

Defendant Abel Olivo appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1170.95. Defendant contends the trial court erred by summarily denying his petition after determining he failed to establish a prima facie case under the provisions of the statute. He argues the trial court should have reappointed counsel, accepted briefing, and issued an order to show cause. We affirm.

1

BACKGROUND Prior Conviction The relevant facts of this case are taken from our prior opinion in defendant’s direct appeal. (People v. Olivo (Feb. 6, 2004, C038291) [nonpub. opn.] (Olivo)). “With [defendant] acting as driver, gang members Jose Olivo and Henry Ortiz gunned down two people in a liquor store.[1] Ortiz sought vengeance against African-American gang members because of an earlier beating by a black rival gang. Unfortunately, the two murder victims were not affiliated with gangs: one was the elderly liquor store owner, the other merely a customer in the wrong place at the wrong time. An information charged defendant, Jose, and Ortiz with two counts of murder with special circumstances (Pen. Code, §§ 187, 190.2, subd. (a)(3), (16) & (22)), two counts of attempted murder (Pen. Code, §§ 664, 187), one count of shooting at an inhabited dwelling (Pen. Code, § 246), and violations of the street gang terrorism statute (Pen. Code, § 186.22, subds. (a) and (d)); defendant was also charged with possession of cocaine base for sale (Health & Saf. Code, § 11351.5.) The court held separate trials for the three defendants. A jury found defendant guilty of two counts of first degree murder, two counts of attempted murder, and one count each of shooting at an inhabited building, gang terrorism, and possession of cocaine base. The jury also found numerous special circumstance allegations to be true. The court sentenced defendant to two terms of life without the possibility of parole and two terms of life with the possibility of parole, plus 75 years to life, plus a determinate term of 20 years.” (Id. [at pp. 1-2], fn. omitted.) Defendant appealed, arguing, among other things, “insufficient evidence supports his conviction for aiding and abetting the killings with intent to kill to support the three special circumstance findings.” (Olivo, supra, C038291 [at p. 38].) We conducted a