Filed 7/19/21 P. v. Brizuela 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, D078376
Plaintiff and Respondent,
v. (Super. Ct. No. SCN317396)
KEVIN BRIZUELA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard R. Monroy, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2016, a jury convicted Kevin Brizuela of two counts of first degree
murder (Pen. Code,1 §§ 187, subd. (a), 190.2, subd. (a)(3)) and two counts of
attempted premeditated murder (§§ 664, 187, subd. (a), 189). The jury also
1 All further statutory references are to the Penal Code unless otherwise
specified.
found true that Brizuela had discharged a firearm causing death or bodily
injury (§ 12022.53, subds. (d) & (e)(1)). Brizuela was sentenced to an
indeterminate term of 100 years to life in prison.
Brizuela appealed and this court issued an unpublished opinion in
October 2018. (People v. Brizuela (Oct. 11, 2018, D071364) [nonpub. opn.].)
In that opinion, we conditionally reversed the judgement and remanded the
case to the trial court to conduct a hearing to determine if the case should be
remanded to the juvenile court since Brizuela was 17 years old at the time of
the offenses. We also directed the trial court to exercise its discretion to
consider whether to strike the firearm enhancement.
On remand, the court held a fitness hearing (Welf. & Inst. Code, § 707).
The trial court declined to remand the case to the juvenile court and denied
the motion to strike the firearm enhancement. The court reinstated the
original judgment and sentence.
Brizuela 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 Brizuela the opportunity
to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
The facts of the offenses are set forth in our prior opinion and do not
need to be repeated here. Rather we will set forth the summary of material
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presented to the trial court as contained in the appellant’s brief for
convenience and for background purposes.
A. Statement of the Case
On October 11, 2018, this Court conditionally reversed the judgment
and remanded the case to the Superior Court with directions. The trial court
was directed to hold a transfer hearing pursuant to Welfare and Institutions
Code section 707 to determine whether: (1) it would have transferred the
case to a court of criminal jurisdiction; and (2) the firearm enhancements
should be stricken.
The parties filed briefs regarding the transfer issue. The trial court
conducted the transfer hearing on November 16, 2020. The trial court
declined to transfer the case to juvenile court. It also refused to strike the
firearm enhancements. The trial court imposed the same sentence previously
imposed. Brizuela filed a timely notice of appeal on December 15, 2020.
B. The Facts from the Transfer Hearing
Exhibits A through F were attached to the prosecution post-conviction
transfer hearing brief. The exhibits are in the four volumes of the augment
clerk’s transcript. The exhibits included incident reports from appellant’s
custody in the San Diego County jail, evidence of appellant’s gang
connections, appellant’s post-conviction, pending transfer criminal and gang
conduct, county and welfare services referral information. The exhibits
showed multiple instances of appellant’s misconduct in custody and gang
connections. The exhibits also showed appellant suffered abuse as a child.
The defense evidence showed appellant was beaten by his stepfather with a
belt and removed from the care of his mother because of the abuse. Appellant
also suffered serious injuries when he fell from a second story window when
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he was six years old. Appellant was initiated into the Vista Homeboys gang
when he was in seventh grade.
The trial court refused to transfer appellant’s case to juvenile court
because: (1) appellant was 17 years and seven months old when the crimes
were committed; (2) repeated attempts by the juvenile court system to reform
him had failed; (3) appellant committed the crimes while completing a period
of probation; (4) appellant was incapable of being rehabilitated; (5) his
criminal delinquent record was extensive; and (6) the crimes were grave. The
trial court refused to dismiss the firearm enhancements for the same reasons.
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 in its review and
incompliance with Anders v. California (1967) 386 U.S. 738 (Anders) counsel
has identified the following possible issues which were considered in
evaluating the potential merits of this appeal.
1. Whether the trial court erred in refusing to order appellant’s case
returned to the juvenile court.
2. Whether the trial court abused its discretion in denying the motion
to strike the firearm enhancement.
We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal in appeal.
Competent counsel has represented Brizuela on this appeal.
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DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
DATO, J.
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