California Court of Appeal Jul 28, 2023 No. E080269Unpublished
Filed 7/28/23 P. v. Olvera 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E080269
v. (Super.Ct.No. CR28041)
DAVID ARENAS OLVERA, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
David A. Olvera, Jr., in pro. per.; Stephanie M. Adraktas, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Defendant and appellant David Arenas Olvera, Jr., appeals from the trial court’s
order denying his petition for resentencing pursuant to Penal Code1 former section
1170.95 (now renumbered to section 1172.6). For the reasons set forth post, we affirm.
STATEMENT OF THE CASE
On November 10, 1987, an information charged defendant with attempted murder
under sections 664 and 187 (count 1), and assault with a firearm under section 245,
subdivision (a)(2) (counts 2 and 3). As to count 1, the information also alleged that
defendant, with the intent to inflict injury, inflicted great bodily injury under section
12022.7. As to all counts, the information further alleged that defendant personally used
a firearm causing great bodily injury under sections 12022.5 and 1192.7, subdivision
(c)(8).
On June 14, 1989, defendant pled guilty to attempted murder (count 1) and assault
with a firearm (count 2).2 As to both counts, defendant admitted that he used a firearm
causing great bodily injury under section 12022.5. Moreover, defendant admitted that he
was armed with a firearm as to the accessory after the fact count.
Thereafter, the trial court sentenced defendant to a total term of 15 years and eight
months in prison, as follows: the upper term of nine years for attempted murder (count
1), one-year consecutive term for assault with a firearm (count 2), and eight months
consecutive for accessory after the fact. The court also ordered a five-year consecutive
1 All further statutory references are to the Penal Code unless otherwise specified.
2 On November 9, 1989, defendant pled guilty to accessory after the fact under section 32 in another case, case No. CR28662 (consolidated case, different victim).
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term under section 12022.5 for the firearm enhancement as to count 1. The court then
stayed the remaining enhancement sentences.
On October 19, 2021, defendant filed a petition to vacate his attempted murder
conviction in propria persona. On January 10, 2022, the trial court issued an order to
show cause requiring the People to show cause why defendant was not entitled to relief.
On April 22, 2022, the People filed opposition arguing that the preliminary
hearing transcripts for this case and the consolidated case established beyond a
reasonable doubt that defendant had committed attempted murder with express malice.
At the hearing on the petition on May 18, 2022, the trial court denied defendant’s
petition.
On June 3, 2022, defendant filed a second pro. per. petition for resentencing under
section 1170.95. On July 1, 2022, defendant filed a third pro. per. petition for
resentencing under the same statute. On September 19, 2022, and October 24, 2022,
defendant filed pro. per. requests for rulings on his petitions. On November 18, 2022, the
trial court dismissed the petitions on grounds that the petition had been denied on May
18, 2022, when the court ruled on the first petition.
On November 30, 2022, defendant filed a timely notice of appeal.
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STATEMENT OF FACTS
A. DEFENDANT’S GUILTY PLEAS3
According to the abstract of judgment, defendant pled guilty to (1) attempted
murder under sections 664 and 187 (count 1), and assault with a firearm under section
245, subdivision (a)(2) (count 3), on June 14, 1989; and (2) being an accessory to a
felony under section 32, on November 9, 1989. As to counts 1 and 3, defendant also
admitted special allegations that he used a firearm under section 12022.5, subdivision (a).
B. DEFENDANT’S PETITIONS
On October 19, 2021, June 3, 2022, and July 1, 2022, defendant filed petitions for
resentencing under section 1172.6. In the petitions, defendant alleged that the
information filed against defendant proceeded under a natural or probable consequences
doctrine or other theory under which malice was imputed. Because of the changes made
to sections 188 and 189, he could not now be convicted of attempted murder.
The People filed their opposition to the first petition on April 22, 2022. In the
opposition, the People provided that defendant had personally fired a gun at the victim
about five times, and struck the victim on his chest and arm. Based on the transcripts of
the preliminary hearings and on the evidence of other bad acts tending to support a
3 The reporter’s transcripts of defendant’s guilty plea hearings are not included in the record. Court reporter Helen Lee (for Susan Schoonover) attested that there are no notes for the June 14, 1989, attempted murder plea hearing because they “are more than ten (10) years old and are no longer available for preparation per Government Code Section 69955(e).” Helen Lee (for Ethel Brooks) attested the same as to the hearing on November 9, 1989, on the accessory plea. There is also no record of defendant’s written plea agreement.
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finding of express malice, the prosecutor argued that the People had met their burden of
proof beyond a reasonable doubt.
With the opposition, the People attached the transcripts from the preliminary
hearings in this and the consolidated case, and records from other court cases.