People v. Olivarez CA3

Filed 10/27/21 P. v. Olivarez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092178

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- 2009-0006398, SF111555A) v.

GABRIEL ISIDORE OLIVAREZ,

Defendant and Appellant.

Defendant Gabriel Isidore Olivarez appeals from the summary denial of his petition for resentencing under Penal Code section 1170.95.1 Defendant contends the trial court was required to appoint counsel and permit briefing prior to determining his eligibility for relief. We agree that the trial court erred in summarily denying the petition

1 Undesignated statutory references are to the Penal Code.

1

without first appointing counsel, but hold the error was harmless because the record of conviction establishes defendant’s ineligibility for relief as a matter of law. FACTUAL AND PROCEDURAL BACKGROUND A number of years ago, “[d]efendant arrived at what was to be a fistfight between two men over a woman. Just as the fight began, he pulled out a gun and fired eight times, first wounding [one man] and then killing [another].” (People v. Olivarez (Jan. 6, 2012, C065061) [nonpub. opn.] (Olivarez).) Defendant was subsequently arrested and charged with numerous crimes. On March 4, 2010, a jury found defendant guilty of murder (§ 187; count 1), attempted murder (§§ 664/187; count 2), and felon in possession of a firearm (§ 12022, subd. (a)(1); count 3). The jury also found true that defendant personally used and personally discharged a firearm as to counts 1 and 2. After finding a strike and two prison priors to be true, the trial court sentenced defendant to an aggregate term of 118 years to life in prison. In 2012, this court affirmed the judgment. (Olivarez, supra, C065061.) On February 25, 2020, defendant filed a form petition for resentencing under section 1170.95. Defendant requested appointed counsel and checked boxes stating, among other things, that he “was not the actual killer” and that he “was convicted of 1st degree murder under the natural and probable consequences doctrine or under the 1st degree felony murder doctrine and [he] could not now be convicted of murder because of changes to Penal Code § 188, effective January 1, 2019.” Without receiving a response from the People, and without appointing counsel, the trial court summarily denied the petition, finding: “[Defendant] was convicted as the shooter and actual killer[.] [T]his verdict was upheld on appeal by the Third D.C.A.” This case was fully briefed on April 30, 2021, and assigned to the current panel on July 30, 2021. The parties waived oral argument and the case was submitted September 17, 2021.