People v. Brizuela CA4/1

Filed 5/27/22 P. v. Brizuela CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D079531

Plaintiff and Respondent,

v. (Super. Ct. No. SCN317396)

KEVIN BRIZUELA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed. Kevin Brizuela, in pro. per.; and John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2016, a jury convicted Kevin Brizuela of two counts of first degree

murder (Pen. Code,1 § 187, subd. (a)) and two counts of attempted murder (§§ 187, subd. (a) & 664). Gang enhancement under section 186.22 and

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

firearm enhancements under section 12022.53 were found true as to each of the counts. The trial court sentenced Brizuela to an indeterminate term of 100 years to life. Brizuela appealed and this court affirmed the convictions. However, the court conditionally reversed the judgment and directed the trial court to conduct a transfer hearing under Welfare and Institutions Code section 707. (People v. Brizuela (Oct. 11, 2018, D071364) [nonpub. opn.].) On remand, the trial court held a transfer hearing and denied transfer to juvenile court. The court also denied motions to strike the firearm enhancements. Brizuela, again, appealed and this court affirmed the judgment in an unpublished opinion. (People v. Brizuela (July 19, 2021, D078376) [nonpub. opn.].) In July 2021, Brizuela filed a petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, reviewed the record of conviction, and held a hearing. The court found Brizuela was ineligible for relief as a matter of law. The court found the record demonstrated Brizuela was tried as a direct aider and abettor or as the actual killer. The jury was not instructed on felony murder or natural and probable consequences. The court denied the petition by written order. Brizuela filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Brizuela the opportunity to file his own brief on appeal, and he has responded with a supplemental brief. We will discuss his submission later in this opinion.