People v. Hurtado

Filed 3/27/23 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B319381 (Super. Ct. No. 2015020888) Plaintiff and Respondent, (Ventura County)

v.

JOSE ALBERTO HURTADO,

Defendant and Appellant.

Here is something novel – a criminal case that need not undergo a hearing pursuant to Penal Code 1 section 1170.95 (now section 1172.6). 2 Why? Because the defendant was the only person who committed the crime of attempted murder for which a jury found him guilty beyond a reasonable doubt. We affirm the trial court on the doctrine of harmless error even though there is no error.

1 All statutory references are to the Penal Code.

Effective June 30, 2022, the Legislature renumbered 2

section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) There was no change in content. We hereafter cite to section 1172.6 for ease of reference.

Jose Alberto Hurtado appeals an order denying his petition for resentencing under section 1172.6. In 2017, we affirmed his conviction for attempted murder (§§ 664, 187, subd. (a) (count 1)); assault with a semiautomatic firearm (§ 245, subd. (b) (counts 2 and 3)); and attempted shooting at an occupied vehicle (§§ 664, 246 (count 4)). (People v. Hurtado (Aug. 30, 2017, B271115) [nonpub. opn.].) 3 The jury found Hurtado personally used a firearm. (§§ 12022.53, subd. (b) (count 1), 12022.5, subd. (a) (counts 2 and 3).) The trial court sentenced Hurtado to an aggregate prison term of 23 years 8 months. In February 2022, Hurtado filed a petition for resentencing under section 1172.6. The trial court denied his petition without appointing counsel or holding a hearing. We affirm. FACTS On March 16, 2015, Felipe Sandoval was driving his car. His passengers were Jose Medina Gamez (Gamez) and Francisco Sandoval (Francisco). Sandoval saw a white Impala automobile following them. Hurtado was in the passenger seat of that car. The white Impala moved to the side of Sandoval’s vehicle. Sandoval made a right turn onto another street. He “got scared” “seeing” Hurtado, whom he had known for three years. (People v. Hurtado, supra, B271115.) Sandoval drove to an intersection and stopped. The white Impala “got there and blocked [his] way.” (People v. Hurtado, supra, B271115.) Sandoval testified that Hurtado “pulled out” a “firearm,” pointed it at him, and “tried firing at [him].” (Ibid.) The gun “didn’t fire.” (Ibid.) Hurtado pulled the trigger several times because the gun would not fire. He “racked the gun” by