People v. Murillo CA4/1

Filed 10/5/23 P. v. Murillo CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D081578

Plaintiff and Respondent,

v. (Super. Ct. No. SCD189155)

JOAQUIN MURILLO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Desiree Bruce-Lyle, Judge. Affirmed. Joaquin Murillo, in pro. per.; and Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2005, a jury convicted Joaquin Murillo of willful, deliberate

premeditated attempted murder (Pen. Code,1 §§ 664 & 187) and robbery (§ 211). The jury also found Murillo personally discharged a firearm causing

1 All further statutory references are to the Penal Code.

great bodily injury (§ 12022.53, subd. (d)). Murillo was sentenced to an indeterminate term of 25 years to life in prison. Murillo appealed his conviction, and this court affirmed the judgment in an unpublished opinion. (People v. Murillo (Feb. 27. 2007, D046976).) In April 2022, Murillo filed a petition for resentencing under section 1170.95 (now renumbered section 1172.6). The court appointed counsel, received briefing and considered the record of conviction, including the information, the verdict forms and this court’s prior opinion. After a hearing the court found Murillo was not eligible for relief under section 1172.6. The court found Murillo was the sole perpetrator, and that he was the actual shooter. The jury found Murillo acted with premeditation and deliberation and that Murillo personally discharged a firearm causing great bodily injury. The court determined Murillo had not stated a prima facie case for relief under the statute and therefore denied the petition without issuing an order to show cause. Murillo filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), indicating counsel has not been able to identify any potentially meritorious issues for reversal on appeal. Counsel asks the court to exercise its discretion and conduct an independent review of the record in the same manner as we would do under the procedure outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). We offered Murillo the opportunity to file his own brief on appeal. He has filed a supplemental brief which we will discuss below. The facts of the underlying offenses were discussed in our prior opinion. We will not repeat them here.