California Court of Appeal Jan 9, 2023 No. E079619Unpublished
Filed 1/9/23 P. v. Suarez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E079619
v. (Super. Ct. No. RIF153089)
ARTURO SUAREZ, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. William S. Lebov, Judge.
Affirmed.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
I.
INTRODUCTION
Defendant and appellant Arturo Suarez Jr. appeals from a postjudgment order 1 2 denying his Penal Code section 1172.6 (formerly section 1170.95) petition for
resentencing under the procedures established by Senate Bill Nos. 775 and 1437.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436
(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), requesting this court to
conduct an independent review of the record. In addition, defendant has had an
opportunity to file a supplemental brief with this court and has not done so. Because the
notice provided by this court to defendant was suboptimal, we independently review the
record on appeal and affirm the judgment. (See People v. Delgadillo (Dec. 19, 2022) ---
P.3d ---- 2022 WL 17748063 (Delgadillo).)
II. 3 FACTUAL AND PROCEDURAL BACKGROUND
Defendant, who was a gang member, lost a fist fight to a senior gang member. As
both parted ways and went to their respective vehicles, d efendant grabbed a gun from his
1 All future statutory references are to the Penal Code. 2 Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to section 1172.6 for ease of reference unless otherwise indicated.
3 A summary of the factual background is taken from this court’s nonpublished opinion in defendant’s direct appeal, case No. E057525 (People v. Suarez (Apr. 10, 2014, No. E057525) [nonpub. opn.] (Suarez I).)
2
vehicle and shot at the senior gang member while he was in his car. Specifically,
defendant went across the street to his car, reached through the driver’s window for his
pistol, walked over to the victim’s car, and fired at the passenger’s side door of the
victim’s car more than six times. Defendant was about six feet away. (Suarez I, supra,
E057525.)
Defendant shot the victim 10 times in the chest, shoulders, arms and finger. After
four surgeries, including putting steel plates in his arms, the victim was released from the
hospital five days after the shooting. The victim’s rear, passenger-side car window was
shattered and the car trunk, passenger-side bumper and inside door panel on the driver’s
side were damaged from bullet strikes. Two .40-caliber bullets and eight shell casings
were recovered. Three of the casings were found in the car. No weapons were found
inside or near the victim’s car. (Suarez I, supra, E057525.)
After the shooting, defendant ran to his car and left the scene. He disposed of his
gun and, fearing incarceration, fled to Las Vegas. Three months after the shooting,
defendant was located and arrested. Defendant admitted to grabbing his gun from his
vehicle and shooting at the victim, but claimed to do so in self-defense. Specifically, he
testified he saw the victim reach under his car seat and pull something out. Defendant
thought the victim was going to kill him, so he ran to his car. Glancing back, defendant
saw the victim holding a gun and thought the victim was going to shoot him. Defendant
grabbed his gun from his car and started firing at the victim’s car because the victim had
a gun pointed at him. Defendant feared for his life and that of his wife and one-month-
3
old son. As the victim drove away, defendant continued firing at the victim. (Suarez I,
supra, E057525.)
On August 22, 2012, a jury convicted defendant of attempted murder (§§ 187,
subd. (a), 664, subd. (a); count 1), felon in possession of a firearm (§ 29800, subd. (a);
count 2); and discharging a firearm at an occupied vehicle (§ 246; count 4). The jury also
found true as to count 1 that defendant personally discharged a firearm causing great
bodily injury (§ 12022.53, subd. (d)), and that the attempted murder was not willful,
deliberate or premeditated. As to count 4, the jury found true the allegation that
defendant personally used a firearm. Defendant admitted his prior serious felony (§ 667,
Holding. The court affirmed the denial of the defendant's petition for resentencing under Penal Code section 1172.6, concluding that the defendant was ineligible for relief because the record of conviction established he was the actual killer.
Issues
Whether the trial court erred in denying the defendant's petition for resentencing under Penal Code section 1172.6.
Whether Wende procedures apply to an appeal from the denial of a postconviction petition under Penal Code section 1172.6.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“the procedures set out in Wende do not apply to a section 1172.6 appeal”
“defendant was not entitled to any relief under section 1172.6 because his record of conviction was clear that defendant was the actual killer and the only participant in the attempted killing.”