People v. Sutter CA5

Filed 12/28/23 P. v. Sutter CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F086138 Plaintiff and Respondent, (Super. Ct. No. F17904754) v.

BRANDON CARL SUTTER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell III, Judge. Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Franson, J. and Smith, J.

INTRODUCTION In 2017, appellant and defendant Brandon Carl Sutter (Sutter) was convicted after a jury trial of premeditated attempted murder with firearm and great bodily injury enhancements, and possession of a firearm by a felon. He was sentenced to life with the possibility of parole for premeditated attempted murder and 25 years to life for the attached firearm enhancement. In 2023, the trial court denied Sutter’s Penal Code1 section 1172.6 petition and found he failed to make a prima facie case for resentencing. On appeal, appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436. Sutter submitted a supplemental brief. We address his contentions and affirm the trial court’s denial of his petition. FACTS2 “Around June 2016, Francisco Martinez’s mother allowed Sutter, whom Martinez had known for at least two years, to move into a house she owned on Mayfair Drive in Fresno. Although Sutter was supposed to keep other people out of the house and

1 All further statutory citations are to the Penal Code. 2 The following facts are from this court’s nonpublished opinion in People v. Sutter (Mar. 8, 2019, F076910) (Sutter) which affirmed the judgment in Sutter’s direct appeal, and the People filed the opinion as an exhibit in opposition to Sutter’s petition without objection. In reviewing a section 1172.6 petition, the court may rely on “the procedural history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3); People v. Clements (2002) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 406, fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in fact finding at the prima facie stage. (People v. Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972.) We have quoted the factual statement from Sutter’s direct appeal to place his current arguments in context, and do not rely on that factual statement to resolve his appeal from the trial court’s order that found his petition did not state a prima facie case for relief.