People v. Valdivia CA4/1

Filed 3/10/23 P. v. Valdivia CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D080796

Plaintiff and Respondent,

v. (Super. Ct. No. FVA801582)

ANDREW VALDIVIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino County, Ingrid A. Uhler, Judge. Affirmed. Andrew Valdivia, in pro. per.; and Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2009, a jury convicted Andrew Valdivia with two counts of

premeditated attempted murder (Pen. Code,1 §§ 664 & 187, subd. (a)) and found true the allegation he personally discharged a weapon causing great

1 All further statutory references are to the Penal Code.

bodily injury (§ 12022.53, subds. (d) & (e)(1)). The jury also found Valdivia personally inflicted great bodily injury (§ 12022.7, subd. (a)). Valdivia was sentenced to an indeterminate term of 30 years plus a term of 55 years to life. Valdivia appealed and this court ordered the trial court to strike the 10 year terms imposed under section 186.22, subdivision (b)(1)(C). The court affirmed the balance of the judgment. (People v. Valdivia (Aug. 12, 2011, D057386) [nonpub. opn.].) In 2021, Valdivia filed a petition for resentencing under former section 1170.95 (now renumbered section 1172.6). The court summarily denied the petition without appointing counsel or conducting a hearing. Valdivia appealed and this court remanded with directions to appoint counsel and conduct an appropriate hearing. (People v. Valdivia (Mar. 25, 2022, D079032) [nonpub. opn.].) On remand the court appointed counsel, received briefing, and conducted a hearing. The court found Valdivia had failed to state a prima facie case for relief under section 1172.6 and denied the petition. Valdivia filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). We forwarded counsel’s brief to Valdivia and gave notice pursuant to Delgadillo that he could file his own brief. In the opening brief, appellate counsel has identified three possible issues that were considered in accordance with Anders v. California (1967) 386 U.S. 738: 1. Whether the court erred in failing to order statutorily mandated briefing before ruling on Valdivia’s petition.