People v. Lyburtus CA4/3

Filed 3/13/24 P. v. Lyburtus 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G062194

v. (Super. Ct. No. 16NF1922)

JOSEPH LYBURTUS, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski, Lynne G. McGinnis and Brendon Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Joseph Lyburtus challenges the trial court’s prima facie denial of his petition for resentencing of his conviction for attempted murder under Penal Code 1 section 1172.6. We conclude the record of conviction established Lyburtus failed to satisfy the conditions for relief under section 1172.6; we therefore affirm. FACTS AND PROCEDURAL HISTORY In an information, Lyburtus was charged with one count of attempted murder (§§ 187, subd. (a), 664, subd. (a) [count 1]), and two counts of assault with a 2 deadly weapon (§ 245 subd. (a)(1) [counts 2 and 3]). The information alleged sentencing enhancements for criminal street gang activity (§ 186.22, subd. (b)(1)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)) as to the attempted murder and assault charges. In August 2018, Lyburtus pled guilty to attempted murder and assault with a deadly weapon and admitted all sentencing enhancement allegations. The factual basis 3 of Lyburtus’s plea in the Tahl form reads: “In Orange County, California, on 5/19/16, I unlawfully, with the specific intent to kill, attempted to murder Brandon T. a human being and personally inflicted GBI on him, he was not an accomplice in this offense. On that date, I also willfully and unlawfully committed assaults with a deadly weapon on Marcus H. and Jesus G., who were not accomplices and inflicted GBI on them. I committed all of these offenses for the benefit of Westside La Habra [gang], with the specific intent to furthur [sic], and assist in criminal conduct by gang members.” (Italics added.)