Filed 7/22/21 P. v. Romero 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F081740
Plaintiff and Respondent,
(Kern Super. Ct. No. BF150357A)
v.
JULIO JESUS ROMERO, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
Matthew A. Lopas, 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., Smith, J. and Meehan, J.
INTRODUCTION
Appellant and defendant Julio Jesus Romero was convicted of two counts of first
degree murder and two counts of attempted murder; he was sentenced to multiple life
terms. In his first appeal, this court remanded the matter for the trial court to determine
whether it would exercise its discretion to dismiss the terms imposed for the firearm
enhancements. The trial court denied the motion, and defendant filed the instant appeal.
On appeal, his appellate counsel has filed a brief that summarizes the facts with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.
FACTS1
In May 2013, defendant arrived at a party while armed with a .40-caliber handgun.
The party hosts tried to eject a group who refused to pay the cover charge, and a fight
broke out among a large crowd. Defendant and some associates became involved in the
fight. Defendant stepped away from the crowd, waited for his associates to also back
away, and then he fired multiple gunshots into the crowd and hit four people. One
witness stated that defendant appeared to be selective as he fired and shot people who
were fighting with his associates. Defendant left in a waiting vehicle; he was located in
Mexico two years later.
As a result of the shooting, two people died from their wounds. The third victim
was shot twice in the back and once on his side; he was in the hospital for 11 days, had
surgeries on his lungs, diaphragm, and back, and his spleen and part of his pancreas were
removed. The fourth victim was shot once in his right armpit; the bullet went through his
lung and hit his spine, leaving him paralyzed from the waist down.
1 Defendant has relied on this court’s nonpublished opinion in his first appeal for
the factual and procedural statements, and that opinion is part of the clerk’s transcript in
this appeal.
2.
At trial, defendant testified and admitted he was the gunman. He heard about the
party through a mass group text message and decided to go. He brought a gun with him
because he did not know what to expect. Defendant testified he was punched during an
altercation, he punched back, and a group of people attacked him. Defendant testified he
was scared for his life and saw someone racking a gun and getting ready to fire.
Defendant pulled out his gun and started shooting, and he did not know where he was
firing. Defendant ran away to Mexico and was arrested two years later.
PROCEDURAL BACKGROUND
On July 28, 2015, an information was filed in the Superior Court of Kern County
charging defendant with counts 1 and 2, first degree premeditated murder (Pen. Code,
§§ 187, subd. (a)), 189);2 with the multiple murder special circumstance (§ 190.2,
subd. (a)(3)), and an enhancement for the personal discharge of a firearm causing death
(§ 12022.53, subd. (d)); counts 3 and 5, attempted premeditated murder (§§ 664, 187,
subd. (a)), with enhancements for personally discharging a firearm causing death or great
bodily injury (§ 12022.53, subd. (d)); and counts 4 and 6, assault with a semiautomatic
firearm (§ 245, subd. (b)) with enhancements for personal use of a firearm (§ 12022.5,
subd. (a)), and infliction of great bodily injury (§ 12022.7).
On August 17, 2016, after a jury trial, defendant was convicted of all charges, and
the special allegations and enhancements were found true.
On October 6, 2016, the court denied the probation and sentenced defendant to life
without the possibility of parole for counts 1 and 2; consecutive terms of 15 years to life
for counts 3 and 5; and consecutive terms of 25 years to life for the firearm enhancements
for counts 1, 2, 3, and 5; it stayed the terms and enhancements imposed for count 4.
2 All further statutory citations are to the Penal Code unless otherwise indicated.
3.
Senate Bill No. 620
Senate Bill No. 620 was signed into law in October 2017, and amended sections
12022.5 and 12022.53 to provide the trial court with discretion to dismiss, in furtherance
of justice, firearm enhancements found true and imposed pursuant to sections 12022.5,
subdivision (c), and 12022.53, subdivision (h). (2017–2018 Reg. Sess.) (Stats. 2017–
2018, ch. 682, §§ 1, 2.) The amendments became effective on January 1, 2018, and are
retroactive to all nonfinal convictions. (People v. McDaniels (2018) 22 Cal.App5th 420,
424–425.)
Defendant’s first appeal
In his first appeal, defendant argued the jury’s findings that the murders and
attempted murders were premeditated were not supported by substantial evidence; raised
instructional and ineffective assistance arguments about the self-defense instructions; and
argued the matter should be remanded for a new sentencing hearing to permit the court to
exercise its discretion and decide whether to strike the firearm enhancements in light of
the enactment of Senate Bill No. 620.
On May 30, 2019, this court filed the nonpublished opinion that rejected
defendant’s substantial evidence and instructional contentions and affirmed his
convictions. However, we held that remand was required for the trial court to determine
whether to exercise its discretion and dismiss the firearm enhancements, the amendments
resulting from newly enacted Senate Bill No. 620 were applicable to defendant’s case
since it was not yet final, and there was no clear indication in the record that the trial
court would have declined to dismiss the enhancements if it had discretion at the time of
the sentencing hearing.
PROCEEDINGS ON REMAND
The instant appeal was filed based on the proceedings on remand, when the trial
court declined to dismiss the firearm enhancements.
4.
Defendant’s motion for resentencing
On May 27, 2020, defendant filed a motion for resentencing on remand and
requested dismissal of the firearm enhancements based on several mitigating
circumstances: defendant was 21 years old at the time of the offenses; he was not the
first person to draw a gun at the party; his prior offenses were only for misdemeanors;
and he struggled in school, did not finish high school, and tried to attend adult school.
When he entered state prison, he was screened for mental health issues, referred for
further evaluation, and placed in the Clinical Case Management System. Defendant’s
motion conceded that he incurred rules violations in prison for substance abuse and
failure to appear for medical screenings and had been convicted of possession of a
controlled substance while incarcerated. Defendant further argued he enrolled in an adult
school in prison, where he was reported to have done well.
The People’s opposition
On August 20, 2020, the People filed a sentencing statement in opposition to
dismissing the firearm enhancements. The People argued the court should not dismiss
the firearm enhancements because defendant’s conduct demonstrated his complete lack
of regard for the safety of others and the community, he acted with the intent to kill, two
people died, and the other victims were seriously injured and disabled. Defendant fled
the scene, showed no remorse, and was hiding in Mexico for two years.
The People further noted that prior to the instant offenses, defendant was
convicted of active participation in a criminal street gang in 2010, the offense was
reduced to a misdemeanor, he was placed on probation, and he violated probation. In
February 2013, he pleaded no contest to possession of a billy club/blackjack, it was
reduced to a misdemeanor, and he was sentenced to jail. In March 2013, he pleaded no
contest to being drunk in public. He committed the instant offenses in May 2013. After
defendant was committed to prison in this case, he pleaded no contest to possession of
drugs by a state prison inmate in 2017, and he was sentenced to six years to be served
5.
consecutively to the term he was already serving. In 2019, he was disciplined for
fighting with other prisoners; and he was also disciplined for testing positive for drugs
and possessing drug paraphernalia.
The court’s ruling
On August 31, 2020, the court held the hearing on remand, heard the parties’
arguments on whether to dismiss the firearm enhancements, and denied the motion. The
court acknowledged it had discretion to dismiss the enhancements, and it considered
defendant’s motion, mitigating arguments, and supporting exhibits. The court recalled
the facts surrounding the murders and attempted murders because it presided over
defendant’s jury trial. The court found defendant’s sentence was fair and appropriate
based on his conduct in committing the offenses, the murders of two victims, and the
grave injuries suffered by the surviving victims. The court stated it would be
“meaningless to impose” a lesser sentence because it would “somehow depreciate the
seriousness of what happened to each individual victim ….”
On August 31, 2020, defendant filed a timely notice of appeal.
DISCUSSION
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on December 14, 2020, we
invited defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.3
3 The trial court’s denial of a motion to dismiss firearm enhancements is reviewed
for an abuse of discretion. (People v. Pearson (2019) 38 Cal.App.5th 112, 116.) When
the court determines whether to exercise such discretion, it should consider several
factors “including the rights of the defendant, the interests of society represented by the
People, and individualized considerations pertaining to the defendant and his or her
offenses and background. [Citation.]” (People v. Rocha (2019) 32 Cal.App.5th 352,
6.
DISPOSITION
The judgment is affirmed.
359.) The court did not abuse its discretion when it denied defendant’s motion in this
case. The court was aware it now had discretion to dismiss the firearm enhancements, it
considered defendant’s mitigating arguments, it had presided over defendant’s jury trial
and recalled the facts of the case, and concluded that it would not dismiss the firearm
enhancements based on the nature and circumstances of defendant’s offenses.
7.