People v. Cervantes CA4/3

Filed 6/20/22 P. v. Cervantes CA4/3 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G058554

v. (Super. Ct. No. 01WF2314)

JAVEN ANTHONY CERVANTES, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent. * * *

This appeal arises from a Penal Code section 1170.95 petition for 1 resentencing. Defendant Javen Anthony Cervantes aided and abetted in a first degree murder for the benefit of a gang. The jury found true the special circumstance that he intentionally did it as an active participant in a criminal street gang. He was sentenced to state prison for life without the possibility of parole. We affirmed that judgment in a prior opinion. (People v. Ramirez (Jan. 18, 2006, G033858) [nonpub. opn.].) In 2019, he filed a section 1170.95 petition for resentencing. The trial court summarily denied the petition without appointing counsel, concluding Cervantes was ineligible for relief under section 1170.95. Cervantes appealed. We affirmed, holding that the gang special circumstance necessarily entailed a finding that Cervantes acted with the intent to kill, thereby disqualifying him for relief under section 1170.95. (People v. Cervantes (Apr. 8, 2021, G058554) [nonpub. opn.].) We also followed the then-majority of cases in holding that the trial court was not required to appoint counsel at the initial prima facie hearing. Cervantes appealed to the California Supreme Court, which granted review and held the case pending the outcome of People v. Lewis (2021) 11 Cal.5th 952 (Lewis). After deciding Lewis, the California Supreme Court remanded the matter to us with instructions to vacate our prior opinion and reconsider the matter in light of Lewis. Lewis does not change the outcome of this appeal. Although it is now clear that the court erred in making prima facie findings without appointing counsel, that error is harmless. Nothing in Lewis affects our conclusion that Cervantes is categorically disqualified from obtaining relief under section 1170.95 by the jury’s finding that he intentionally committed murder for the benefit of a criminal street gang. Accordingly, we affirm.