People v. Valdes CA2/2

Filed 11/18/21 P. v. Valdes CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B312813

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA134222) v.

JOSE ANTONIO VALDES,

Defendant and Appellant.

THE COURT:

Jose Antonio Valdes (defendant) appeals the trial court’s 1 denial of his motion for relief under Penal Code section 1170.95. Defendant’s attorney filed a brief raising no issues and asked this court to independently review the record. On September 1, 2021, we notified defendant of his counsel's brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or

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

argument he might wish to have considered. That time has elapsed, and defendant has submitted no brief or letter. We conclude that the trial court did not err in denying the petition. FACTUAL AND PROCEDURAL BACKGROUND 2 I. Facts A. The underlying crime In April 2012, defendant and a fellow gang member, Maximiliano Guadalupe Murillo (Murillo), drove into rival gang territory. They were joined by a third fellow gang member, Ricardo Virgen (Virgen), who drove separately. The three men came upon a rival gang member, and one of them—namely, Virgen—fired 10 shots from two different firearms, killing him instantly. B. Prosecution, conviction, and appeal The People charged defendant, Murillo, and Virgen, with murder (§ 187, subd. (a)), and further alleged that the murder was gang related as defined in section 186.22, subdivision (b)(1)(C). The People further alleged that a principal in the crime discharged a firearm (§ 12022.53, subds. (d) & (e)(1)), and that defendant and Virgen had personally discharged a firearm (§ 12022.53, subd. (d)). The matter proceeded to a joint trial. A jury found defendant guilty of second degree murder, and found