Filed 3/4/21 P. v. Oliva CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078193
Plaintiff and Respondent,
v. (Super. Ct. No. CR137512)
HENRY MICHAEL OLIVA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Peter C. Deddeh, Judge. Affirmed.
Jason L. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance by Plaintiff and Respondent.
BACKGROUND
Defendant Henry Michael Oliva and codefendant Steven Francis
Corotan1 were charged with one count of murder (Pen. Code,2 § 187, count 1)
and one count of conspiracy to commit murder (§ 182, subd. (a)(1), count 2).
As to count 1, the information further alleged defendant aided and abetted
the murder and was personally armed with a firearm. (§ 12022, subd. (a)(1).)
Defendant in September 1993 pleaded guilty to count 1, as an aider and
abettor to a murder. He was sentenced to 25 years to life.
On February 6, 2019, defendant filed a petition for resentencing
pursuant to section 1170.95. The court summarily denied the petition on
October 20, 2020, finding defendant was a direct “aider and abettor” in the
murder. Unable to identify any arguable issues, appellate counsel seeks
independent review of the record pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders).
Affirmed.
FACTUAL OVERVIEW
The following facts are taken from this court’s unpublished opinion in
defendant’s direct appeal, People v. Henry Michael Oliva (Mar. 21, 1995,
D020816, [nonpub. opn.] (Olivia I)), in which we affirmed the judgment.
“On the evening of October 15, 1992, 16-year[-]old Oliva and a group of
young men passed around a handgun and joked about killing James C[.] At
C[.]’s home, Oliva and one young man went to the front door and spoke with
C[.]’s mother. C[.] was not home. Later that evening, the group went to
1 Corotan was also charged with the special circumstance allegation of
lying in wait and personally using a firearm. (§§ 190.2, subd. (a)(1) &
12022.5.) He is not a party to this appeal.
2 All further statutory references are to the Penal Code.
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Henry Laguit’s home. Again the group members were tossing the gun around
and talking about shooting him. When Laguit came to the door, one of the
group shot and killed him.” (Olivia I, at p. *2.)
In Olivia I, this court denied defendant’s contention that the trial court
abused its discretion in sentencing him to prison. Defendant’s contention
was based on a series of statements made by the trial court at his sentencing
including as follows:
“This case generally presents one of the most vicious case facts I think I
have ever seen. This involves a killing party by a gang, a gang including Mr.
Oliva, who thought out how to get a gun, thought out who they would kill,
and settled upon two victims.
“The first victim fortunately was not home and he is alive today
because he was not home. The second victim, unfortunately, was home. His
mother answered the door first in response to Mr. Oliva’s knock. It was Mr.
Oliva who walked to the front door, asked for the victim to come forward,
gave a false name, gave his middle name, and then stood back while his
friend, who he knew very well and knew had the gun, came forward and shot
point blank into that victim’s chest, killing him.
“This is vicious. It’s atrocious. It’s beyond comprehension. And how
this comes out of a normal, hard-working, good family is beyond
comprehension also.”
As noted, appellate counsel has filed a brief based on Wende and
Anders. Counsel has summarized the facts and proceedings and includes
citations to the records. He urges there are no contentions which, if found
meritorious, would result in reversal or modification of defendant’s judgment.
Counsel represents he has informed defendant of his right to file a
supplemental brief on his own behalf and has provided defendant with a copy
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of the record on appeal. This court also has informed defendant of his right to
file a supplemental brief. He has chosen not to file such a brief.
Counsel requests that, pursuant to Wende and Anders, this court
independently review the entire record to determine if there are any issues
which, if resolved in defendant’s favor, would result in modification or
reversal of his judgment. To assist us in this review, pursuant to Anders
counsel has pointed us to the following possible issues: whether the court
erred in denying defendant’s petition for relief under section 1170.95; and
whether the procedural protections of Wende and Anders extend to his section
1170.95 petition. Finally, counsel asks this court to conduct an independent
review of the record in the interest of justice.
DISCUSSION
“In 2018, ‘the Governor signed Senate Bill No. 1437 . . . in order to
“amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
Senate Bill [No.] 1437 also added . . . section 1170.95, which created a
[petition] procedure whereby a person whose felony murder conviction was
final, but who could not have been convicted under the amended statutes,
could petition to have the conviction vacated.’ [Citation.]” (People v.
Gomez (2020) 52 Cal.App.5th 1, 11–12.)
Under section 1170.95, subdivision (c) a trial court presented with a
facially valid petition must determine if the petition sets forth a prima facie
case for relief. If it does, the court must then hold a hearing at which the
prosecutor bears the burden to prove beyond a reasonable doubt that the
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petitioner is ineligible for resentencing. If the prosecutor fails to meet this
burden, the court must vacate the murder conviction and resentence the
defendant on any remaining counts. (§1170.95, subds. (c) & (d).)
As the trial court here correctly noted, defendant cannot make a prima
facie showing that he is entitled to relief under the provisions of section
1170.95 because he pleaded guilty as a direct aider and abettor under an
express or implied malice theory, and not based on the natural and probable
consequences or felony-murder theory.
We also have fully and independently examined the record and
conclude that there are no issues which, if resolved favorably to defendant,
would result in reversal or modification of his judgment; and that defendant
has been represented by competent counsel in this appeal.
DISPOSITION
The order of the trial court denying defendant’s section 1170.95 petition
is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
GUERRERO, J.
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