People v. Bautista CA4/3

Filed 12/15/21 P. v. Bautista CA4/3 Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Hector Acosta Bautista appeals an order summarily denying his 1 petition for resentencing under Penal Code section 1170.95. The appeal started out as a standard Wende appeal in which defense counsel declared she was unable to find any arguable issues to raise on behalf of appellant. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) However, after we issued our opinion affirming the trial court’s denial order, the Supreme Court handed down its decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which clarified the procedures for adjudicating a petition for resentencing under section 1170.95. In light of Lewis, we granted appellant’s petition for rehearing and directed the parties to file supplemental briefing on that decision. Having considered the parties’ briefing, and having reviewed the record as required under Wende, we conclude there is no arguable basis for disturbing the trial court’s ruling. Accordingly, we affirm its order denying appellant’s resentencing petition. FACTUAL AND PROCEDURAL BACKGROUND 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 also admitted he helped dispose of the gun later on. Appellant was originally charged with two counts of attempted murder, shooting at an inhabited dwelling, and street terrorism. However, on the eve of trial, the prosecution amended the information to instead charge two counts of aggravated assault, street terrorism, and conspiracy to commit murder. The jury convicted appellant of all four charges. It also found true allegations a principal intentionally discharged a firearm