People v. Penaloza CA2/4

Filed 12/4/23 P. v. Penaloza CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, B324354

Plaintiff and Respondent, Los Angeles County Super. Ct. No. PA003748 v.

ERIBERTO GUEBARA PENALOZA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, David Walgren, Judge. Affirmed. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Gabriel Bradley, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION AND PROCEDURAL BACKGROUND

In 1997, a jury convicted defendant and appellant Eriberto Guebara Penaloza of two counts of first degree murder (Pen. Code,1 § 187, subd. (a)) and two counts of robbery (§ 211). The trial court sentenced him to consecutive terms of 25 years to life on each murder count, plus a 1-year firearm enhancement. The court stayed sentencing on the robbery counts under section 654. On direct appeal, a different panel of this court affirmed the judgment, in case number B116017 (Penaloza I).2 In 2019, Penaloza filed a petition for recall of and resentencing on his murder convictions under former section 1170.95.3 After holding an evidentiary hearing under former section 1170.95, subdivision (d), the trial court denied the petition, concluding the evidence showed Penaloza had been a major participant in the robberies underlying his murder convictions who acted with reckless indifference to human life. We affirmed the trial court’s order denying relief. (People v. Penaloza (May 3, 2021, B304714 [nonpub. opn.] (Penaloza II).)4

1 All undesignated statutory references are to the Penal Code. 2 We take judicial notice of our opinion in that case. (See Evid. Code, § 452, subd. (a).) 3 Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. 4 We granted Penaloza’s request for judicial notice of the appellate record in Penaloza II.