People v. Fuentes CA2/2

Filed 5/20/22 P. v. Fuentes CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B316821

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A197745) v.

JOSE LEON FUENTES,

Defendant and Appellant.

THE COURT:

Jose Leon Fuentes (defendant) appeals the trial court’s denial of his motion for relief under Penal Code section 1170.95.1

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

Defendant’s attorney filed a brief raising no issues and asked this court to independently review the record. Having conducted our own examination of the record, we are satisfied that no arguable issue exists which would call into question defendant’s ineligibility for resentencing relief under section 1170.95. We accordingly affirm the trial court’s order. FACTUAL AND PROCEDURAL BACKGROUND I. Facts A. The underlying crime On the afternoon of December 1, 1980, defendant and an accomplice approached a Brinks guard as he left a department store carrying approximately $85,000 in a Brinks bag. Each defendant and his accomplice was armed with a gun. The Brinks guard was shot, and died from the resulting wounds. Later analysis determined that the gun left at the scene by the accomplice was never fired. However, ballistics tests indicated that the bullets found in the guard’s body had been fired from the gun found beside defendant at the time defendant was arrested. B. Conviction and appeal In 1981, a jury convicted defendant of first degree murder with a finding that the murder was committed while defendant was engaged in the commission of an attempted robbery (§§ 187, subd. (a), 189, 190.2, subd. (a)(17)(i)), attempted robbery (§§ 664, 211), and unlawful driving or taking a motor vehicle (Veh. Code, § 10851). It also found true the allegation that defendant personally used a firearm in the commission of the attempted robbery and the murder (§ 12022.5). (People v. Fuentes (1985) 40 Cal.3d 629, 633.) The jury fixed the penalty at death and the trial court imposed that sentence. On direct appeal to the California Supreme Court, the conviction was affirmed, but the