Filed 11/24/20 P. v. Godinez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE GODINEZ,

Defendant and Appellant.

 B298474

 (Los Angeles County 

 Super. Ct. No. TA126401)

APPEAL from an order of the Superior Court of Los 

Angeles County. Pat Connolly, Judge. Affirmed. 

Orly Ahrony for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, David E. Madeo and Yun K. Lee, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * * * * *
2

Defendant and appellant Jose Godinez was convicted by 

jury in February 2014, along with two codefendants, of one count 

of premeditated attempted murder. A gang enhancement (Pen. 

Code, § 186.22, subd. (b)(1)(C)) and a firearm use enhancement 

(§ 12022.53, subd. (e)(1)) were also found true. Defendant was 

sentenced to an indeterminate term of 40 years to life. 

In an unpublished opinion, we affirmed the convictions of 

all defendants but reversed the firearm use enhancement and 

remanded for resentencing. (People v. Ifopo (Feb. 16, 2016, 

B255922) [nonpub. opn.].) Specifically, as to defendant Godinez, 

we said: “the court shall strike the [Penal Code] 

section 12022.53, subdivision (e)(1) enhancement. The court 

shall sentence him under section 12022.53, subdivision (d) 

instead of under subdivision (e)(1).” The Supreme Court denied 

review. 

In August 2016, the resentencing hearing was held. 

Defendant’s counsel was present, but defendant was not present. 

The court struck the firearm use enhancement pursuant to Penal 

Code section 12022.53, subdivision (e)(1). The court then 

imposed an aggregate sentence of 40 years to life, consisting of 

15 years to life for the attempted murder, and 25 years to life for 

the firearm use pursuant to section 12022.53, subdivision (d). 

The court forwarded a new abstract of judgment to the 

Department of Corrections and Rehabilitation. Defendant did 

not appeal.

More than two years later, on February 19, 2019, defendant 

filed a petition for writ of habeas corpus seeking to vacate the 

August 2016 judgment of conviction and requesting a new 

sentencing hearing to take place in his presence. 
3

A hearing was held on May 9, 2019, at which defendant 

and his counsel were present. Defense counsel proposed to call a 

purported gang expert to testify defendant was not a gang 

member. The court stated it had read and considered the 

exhibits attached to defendant’s petition, that it found the 

proposed expert testimony to be irrelevant, and did not intend to 

retry the case. After hearing the arguments of counsel, and 

extensively discussing the trial evidence with counsel, the court 

denied the request to modify defendant’s sentence. 

Defendant contends the court violated his rights by failing 

to hold an evidentiary hearing on the habeas petition. We 

disagree. Where habeas relief “hinges on the resolution of factual 

disputes, then the court should order an evidentiary hearing.” 

(People v. Romero (1994) 8 Cal.4th 728, 739-740; see also Cal.

Rules of Court, rule 4.551(f) [“An evidentiary hearing is required 

if . . . the petitioner’s entitlement to relief depends on the 

resolution of an issue of fact.”].) Defendant filed a habeas 

petition for the sole purpose of establishing his right to be present 

at a resentencing hearing because he had not been present for

the August 2016 resentencing hearing. Where, as here, “ ‘there 

are no disputed factual questions as to matters outside the trial 

record, the merits of a habeas corpus petition can be decided 

without an evidentiary hearing.’ ” (People v. Duvall (1995) 

9 Cal.4th 464, 478.) 

Defendant also claims the court was biased against him. 

Defendant never objected in the trial court on this basis and

never moved to disqualify Judge Connolly. The contention has 

therefore been forfeited. (People v. Rodriguez (2014) 58 Cal.4th 

587, 626 [the defendant cannot raise claim of judicial bias for the 
4

first time on appeal]; accord, People v. Johnson (2018) 6 Cal.5th 

541, 592.)

In any event, the contention is without merit. Defendant’s 

argument rests on a mischaracterization of the court’s actions. 

The court did not take on the role of prosecutor. Rather, the 

court, after listening to argument, thoroughly explained the trial 

evidence and bases for its decision that defendant was not 

entitled to an order striking the firearm use enhancement. The 

record does not show the court acted in a biased manner. 

DISPOSITION

We affirm the order denying defendant’s request to modify 

his sentence.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J. 

WILEY, J.