People v. Saldana CA5

Filed 12/5/22 P. v. Saldana CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F084146 Plaintiff and Respondent, (Super. Ct. No. 1246306) v.

ALVARO LEAL SALDANA, JR., OPINION Defendant and Appellant.

THE COURT * APPEAL from an order of the Superior Court of Stanislaus County. Dawna Reeves, Judge. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Detjen, J. and Meehan, J.

Appointed counsel for defendant Alvaro Leal Saldana, Jr., asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. We affirm the superior court’s denial of defendant’s Penal Code section 1170.95 (now section 1172.6)1 petition. BACKGROUND 2 On March 22, 2008, defendant and his brother, Ray Gutierrez, Jr.—both members of Varrio West Side Turlock, the primary Norteño gang in Turlock—attended a wedding reception in Hilmar. There, Gutierrez got into a fight with Miguel Perez, an inactive Norteño gang member with whom he had personal issues dating back a number of years. Others joined in, including Roger Villanueva, who was an active Norteño but also a friend of Perez. Villanueva did not get along with defendant and Gutierrez. In the fight, defendant got knocked out, possibly by Villanueva. Although Villanueva was an active Norteño, he may have been in trouble with the gang for going to the aid of a dropout (Perez) against active gang members at the wedding reception. A few days after the wedding, defendant happened to encounter Villanueva. Defendant pointed at him and made a gun gesture with his hands.

1 All statutory references are to the Penal Code. Section 1170.95 has been renumbered as section 1172.6, effective June 30, 2022 (Stats. 2022, ch. 58, § 10), with no substantive change. For consistency, we will refer to former section 1170.95 as section 1172.6 throughout this opinion. 2 The factual portion of this background is taken from our prior opinion in People v. Gutierrez (Aug. 26, 2013; F062970) [nonpub. opn.] (Gutierrez), which contains an extensive factual statement. We have ordered the record in Gutierrez, supra, F062970 and in People v. Saldana (Dec. 7, 2020; F079712) [nonpub. opn.] incorporated by reference into the present appeal.