People v. Vizcarra CA4/3

California Court of Appeal May 9, 2023 No. G061801Unpublished

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Holding. The court affirmed the denial of the defendant's petition for resentencing under Penal Code section 1172.6, finding that the record of conviction conclusively established the defendant was ineligible for relief as a matter of law.

Issues

Did the trial court err in denying the defendant's petition for resentencing at the prima facie stage?
Does the record of conviction support the trial court's finding that the defendant is ineligible for relief under section 1172.6?

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Exercising our discretion and in the interest of justice, we have examined the entire record and we find no reasonably arguable issue.”

“Since the record of conviction established Vizcarra was not convicted under a vicarious liability theory, relief was properly denied by the trial court.”

Filed 5/9/23 P. v. Vizcarra CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G061801

v. (Super. Ct. No. 16CF2235)

ANDRES VIZCARRA, OPI NION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Defendant Andres Vizcarra filed a petition for resentencing pursuant to 1 former Penal Code section 1170.95. The trial court denied Vizcarra resentencing relief at the prima facie hearing on the petition. Appointed counsel for Vizcarra filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case. Citing Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel also 2 identified a potential issue to assist in our independent review. Vizcarra was given an opportunity to file a supplemental brief, but did not do so. Exercising our discretion and in the interest of justice, we have examined the entire record and we find no reasonably arguable issue. (See Delgadillo, supra, 14 Cal.5th at p. 232; People v. Flores (2020) 54 Cal.App.5th 266, 268.) We therefore affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2018, a jury found Vizcarra guilty of premediated and deliberate attempted murder (§§ 664, subd. (a), 187, subd. (a)), attempted murder (§§ 664, subd. (a), 187, subd. (a)), two counts of assault with a semiautomatic firearm (§ 245, subd. (b)), second degree robbery (§§ 211, 212.5, subd. (c)), and assault with force likely to produce

People v. Vizcarra CA4/3

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

ANDRES VIZCARRA, OPI NION

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