Filed 7/19/21 P. v. Brizuela CA4/1

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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,

Plaintiff and Respondent,

v.

KEVIN BRIZUELA,

Defendant and Appellant.

 D078376

 (Super. Ct. No. SCN317396)

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.
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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Brizuela appealed and this court issued an unpublished opinion in 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.