Filed 6/29/23 P. v. Nunez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JORGE NUNEZ,

 Defendant and Appellant.

2d Crim. No. B324488

(Super. Ct. No. TA084751)

(Los Angeles County)

Jorge Nunez appeals the denial of his petition for 

resentencing. (Pen. Code, § 1172.6.)

1 We appointed counsel for 

Nunez for this appeal. Counsel was unable to find any arguable 

issues to brief and she filed an opening brief under People v. 

Delgadillo (2022) 14 Cal.5th 216.) Nunez filed a supplemental 

brief. We conclude, among other things, that Nunez has not 

shown the trial court erred by denying his petition. We affirm.

A jury convicted Nunez of three counts of attempted 

murder, two counts of discharging a firearm at an occupied motor 

1 All statutory references are to the Penal Code.
2

vehicle, and one count of discharging a firearm at an inhabited 

dwelling. (§§ 187, subd. (a), 664, 246.) The jury also found that 

“a principal personally and intentionally discharged a firearm” 

during an incident on Nord Street on May 7, 2006; that Nunez 

personally discharged a firearm during an incident on Stockwell 

Street on January 29, 2006; and that “the criminal offenses were 

committed to benefit a criminal street gang.” (§§ 12022.53, 

subds. (b), (c) & (d), 186.22, subd. (b)(1)(C).) The trial court 

sentenced Nunez to a prison term of 170 years to life. 

In 2011, we affirmed his convictions. (People v. Nunez

(Mar. 2, 2011, B213646) [nonpub. opn.].) We concluded, among 

other things, that 1) Nunez “admitted involvement in the 

Stockwell Street and Nord Street incidents” to the police on June 

1, 2006; 2) his confession to police was properly admitted at trial; 

3) he did not show ineffective assistance of counsel; and 4) 

sufficient evidence supported the judgment. (Ibid.)

Nunez contends the trial court erred by denying his 

resentencing petition because his trial counsel at his criminal 

trial was ineffective for not requesting separate trials for the 

January 29 and May 7, 2006, incidents. But Nunez has failed to 

cite to the record to support the factual basis for this claim.

(People v. Young (1978) 85 Cal.App.3d 594, 608.) But, even so, he 

raised this same claim in his prior appeal and we rejected it. We 

said, “We reject Nunez’s contentions of ineffective assistance of 

counsel because he has not demonstrated prejudice. [A] motion 

to sever the counts would have been futile; the counts were of 

same nature (attempted murders and discharging a firearm at 

occupied vehicles and residences) and involved the same Jeep 

Cherokee.” (People v. Nunez, supra, B213646.)
3

Nunez contends his intent was innocent and he lacked the 

required intent to commit attempted murder. But he does not 

cite to the record to support this claim. “Appellant’s statements 

in his brief on appeal of what occurred at trial cannot be 

considered by us, as these facts are outside the record on appeal.” 

(People v. Elkins (1992) 12 Cal.App.4th Supp. 1, 4; see also People 

v. Young, supra, 85 Cal.App.3d at p. 608.) 

Moreover, the jury rejected Nunez’s claim of alleged 

innocent intent. It found Nunez’s attempted murder counts were

“committed willfully, deliberately and with premeditation.” In 

their opposition to his petition for resentencing, the People said, 

“The judge instructed the jurors on attempted murder. Those 

instructions included an explanation that in order to be convicted 

of attempted murder the defendant must have ‘intended to kill.’ 

The phrase ‘willful, deliberate and premeditate’ was also 

defined.”

Nunez contends his sentence of 170 years to life is “cruel 

and unusual punishment.” But California courts have repeatedly 

rejected this claim. (People v. Abundio (2013) 221 Cal.App.4th

1211, 1220-1221: People v. Argeta (2012) 210 Cal.App.4th 1478, 

1482.)

Nunez has failed to show trial court error.

DISPOSTION

The order denying the resentencing petition is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J. CODY, J.
4

Tammy Chung Ryu, Judge

Superior Court County of Los Angeles

______________________________

Ellen M. Matsumoto, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.