Filed 2/26/21 P. v. Valdez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078240
Plaintiff and Respondent,
v. (Super. Ct. No. SCE333769)
JOSE LUIS VALDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Affirmed.
Jose Luis Valdez, in pro. per.; and Aaron J. Schechter, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2015, a jury convicted Jose Luis Valdez of one count of first degree
murder (Pen. Code,1 § 187, subd. (a)); one count of second degree murder
(§ 187, subd. (a)); and one count of conspiracy to commit murder (§ 182,
subd. (a)(1)). The jury found true an allegation that Valdez personally and
1 All further statutory references are to the Penal Code.
intentionally discharged a firearm causing death (§ 12022.53, subd. (d)).
Valdez was sentenced to an indeterminate term of 65 years to life plus life
without parole.
Valdez appealed, and in 2017, this court affirmed the judgment in an
unpublished opinion. (People v. Valdez (Jan. 31, 2017, D068994) [nonpub.
opn.].)2
In September 2020, Valdez filed a petition for resentencing under
section 1170.95.
In October 2020, the court denied the petition in a written order. The
court stated it had reviewed the record of conviction as well as this court’s
opinion in People v. Valdez, supra, D068994. The court found Valdez was the
actual killer and therefore had not made a prima facie showing of entitlement
to relief.
Valdez has filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Valdez the opportunity to
file his own brief on appeal, and Valdez has filed a lengthy supplemental
brief which we will discuss below.
STATEMENT OF FACTS
The facts of the offenses have been fully set forth in our prior opinion.
(People v. Valdez, supra, D068994.) We will not repeat them here.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court, and in
2 We grant counsel’s request to take judicial notice of our prior opinion.
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compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has listed the following possible issues that were considered in evaluating the
potential merits of this appeal:
1. Did the trial court err in denying appellant’s petition for
resentencing pursuant to section 1170.95;
2. Did the court err in considering the record of appellant’s conviction,
and is any error harmless; and
3. Did the trial court err in denying appellant’s request for
appointment of counsel, and is any error harmless?
Valdez has submitted a supplemental letter brief. He has attached
copies of documents already in the record. He freely admits he was the
actual killer in both murder cases. Based on his interpretation of
section 1170.95, he argues it does not matter because his petition states a
prima facie case for relief. Valdez claims he was prosecuted on a felony
murder theory and a natural and probable consequence theory. Both
contentions are not supported by the record. He was the actual killer in two
gang-related murders. He was not charged with or tried as an aider and
abettor. The only reference to natural and probable consequences in the
record is in a jury instruction regarding murder discussing malice arising
from the perpetrator’s own acts which would give rise to a risk of death. Such
instruction has nothing to do with the modification to sections 188 and 189
regarding accomplice liability. In short, Valdez’s brief has not identified any
arguable issues for reversal on appeal.
We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Valdez on this appeal.
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DISPOSITION
The order denying Valdez’s petition for resentencing under section
1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
DATO, J.
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