People v. Valdivia CA4/1

Filed 3/25/22 P. v. Valdivia CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D079032

Plaintiff and Respondent,

v. (Super. Ct. No. FVA801582)

ANDREW VALDIVIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino, County, Ingrid A. Uhler, Judge. Reversed and remanded with directions. Respondent’s request for judicial notice is denied. Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Robin Urbanski, and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

In 2009, a jury convicted Andrew Valdivia of two counts of attempted

premeditated murder (Pen. Code,1 §§ 664, 187, subd. (a)) and two counts of assault with a firearm (§ 245, subd. (a)(2)). The jury found true firearms enhancements under sections 12022.5, subdivision (a) and 12022.53, subdivisions (b), (c), (d) and (e)(1) and found that Valdivia personally inflicted great bodily injury (§ 12022.7, subd. (a)). In addition, the jury found the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Valdivia was sentenced to a total term of 85 years to life in prison. Valdivia appealed, and this court affirmed the judgment in an unpublished opinion. (People v. Valdivia et al. (Aug. 12, 2011, D057386) [nonpub. opn.].) In 2021, Valdivia filed a petition for resentencing under section 1170.95. The trial court summarily denied the petition without appointing counsel, receiving briefing, or conducting a hearing. Valdivia filed a timely notice of appeal. The parties to this appeal agree the trial court erred in summarily denying the petition without appointing counsel. (People v. Lewis (2021) 11 Cal.5th 952, 970-972 (Lewis).) The only issue in this appeal is whether the error was harmless. In order to shore up the argument for harmless error, the Attorney General has filed an opposed request for the court to take judicial notice of the record of conviction contained in our records in case No. D057386. Because of the summary manner in which the trial court disposed of this case, the record of conviction was never before the court. We