1

Filed 7/20/23 P. v. Uribe CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

DAVID RUBEN URIBE,
Defendant and Appellant. E080159
(Super.Ct.No. RIF123822)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

The opinion herein, filed on April 14, 2023, is modified as follows:
On page 1 of the opinion, “John D. Ferguson, Judge,” should be deleted and
replaced with, “John D. Molloy, Judge.”
The modification does not affect the judgement.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.1

Filed 4/14/23 P. v. Uribe CA4/2 (unmodified opinion) See Dissenting Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

DAVID RUBEN URIBE,
Defendant and Appellant. E080159
(Super.Ct.No. RIF123822)

OPINION

APPEAL from the Superior Court of Riverside County. Jon D. Ferguson, Judge.

Affirmed with directions.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.2

Defendant and appellant David Ruben Uribe appeals the Riverside County
Superior Court’s summary denial of his petition for resentencing made pursuant to

section 1172.6 of the Penal Code. 1 We will order correction of the record and affirm.

BACKGROUN D
Defendant was convicted of first degree murder in February 2011 and we affirmed
the judgment. ( People v. Uribe (Mar. 13, 2013, E053314) [nonpub. opn.] ( Uribe I ).)

Thereafter, defendant twice petitioned the trial court for se ction 1172.6 resentencing with

respect to that conviction without success. This appeal is from the court’s denial of his
second petition.

1. Defendant’s appeal from the dismissal of his first petition
In his appeal from the dismissal of his first petition for resentencing, defendant
argued the trial court erred because the jury’s special

- circumstance findings did not
preclude him from obtaining relief under section 1172.6. He also claimed remand was
required on due process grounds because he had a statuto ry right to submit a brief after
his counsel was appointed and no brief was filed. We found defendant was not eligible
for resentencing relief as a matter of law because his conviction does not come within the
requirements of section 1172.6. ( People v. U ribe (Jan. 25, 2022, E075761) [nonpub.

opn.] ( Uribe I

I ) .) On February 23, 2022, we denied his petition for rehearing.
Thereafter, the Supreme Court denied his petition for review (Mar. 30, 2022 , S273330 ).

1 Section 1170.95 was renumbered as section 1172.6 without change in the text, effective June 30, 2022

. ( Stats. 2022, ch. 58, § 10

. ) For the sake of simplicity, we refer to the provision by its new numbering. All furth er statutory references are to the Penal Code.3

2. The denial of defendant’s second petition resulting in this appeal
In June 2022, just six months after we issued our opinion in Uribe I I
, defendant
filed another petition pursuant to 1172.6, again seeking resentencing in the same matter
that was the subject of his first petition. Defendant waived his appearance but was
represented by counsel at the hearing, who submitted following the People ’ s oral motion

to deny the petition with prejudice. The court granted the motion, stating on the record

that the petition “is denied with prejudice.” The minutes of the hearing reflect the denial,

but does not include the fact that the denial was with prejudice.
On appeal, defendant’s appointed appellate counsel filed an opening brief in
accordance with the procedures set forth in People v. Delgadillo (2 022) 14 Cal.5th 216
stating that counsel reviewed the record and did not find an arguable issue. Counsel

sugge sts two potentially arguable issues involving special circumstances set forth in

subdivision (a) of section 190.2, which were addressed in Uribe I I. : whether defendant is
precluded from resentencing relief on account of either (i) the jury’s true finding on the
victim witness special circumstance set forth in subdivision (a)(10)
, or (ii) its true finding
on the subdivision (a)(15) lying

- in

- wait special circumstance.
We offered defendant an opportunity to submit a supplemental brief, but none was

filed.

DIS CUSSION

A s a general rule, if this court has made a determination in an earlier appeal that a
defendant is not eligible for section 1172.6 relief as a matter of law, and defendant then4

later appeals from a denial of a second 1172.6 petition filed in the sa me case, dismissal of
the appeal is an appropriate remedy. But, if we find correction of the record in the
second appeal is necessary, then we affirm with directions to fix the error.
Here, defendant’s second resentencing petition sought the same relief in the same
matter as his first petition even though our opinion in Uribe I I

. had already made clear
that his conviction does not meet the requirements of section 1172.6 as a matter of law.
We will not dismiss his appeal from the trial court’s denial of the second petition,
however, because the court’s order set forth in minutes of the hearing on that petition
differs from the order contained in the reporter’s transcript.
Where there is a discrepancy between the reporter’s transcript and the minutes that
cannot be harmonized, which record will prevail depends on the circumstances of each
particular case. ( People v. Harrison (2005) 35 Cal.4th 208, 226.) Here, we deem the
reporter’s transcript to be the accurate record. Accordingly, we will affirm the tr ial
court’s order denying defendant’s petition with prejudice and order correction of the

record.5 DISPOSITION
The judgment is affirmed with directions to correct the October 28, 2022 minute
order to read, “Petition for 1170.95 denied with prejudice
, ” and “Motion/Petition denied
with prejudice.”

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J. I concur:

FIELDS J.1

[ The People v. David Ruben Uribe , E080159]
MENETREZ, J., Dissenting.
I respectfully dissent because I would dismiss the appeal as abandoned under

People v. Delgadillo (2022) 14 Cal.5th 216, 232.

MENETREZ

J.