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Filed 11/23/21 P. v. Gutierrez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

ESTEBAN GUTIERREZ,

 Defendant and Appellant.

 G060090

 (Super. Ct. No. 98WF0720)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, 

Cheri T. Pham. Affirmed. 

Erica Gambale, under appointment by the Court of Appeal, for Defendant 

and Appellant.

No appearance for Plaintiff and Respondent.
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We appointed counsel to represent Esteban Gutierrez on appeal. Counsel 

filed a brief that set forth the facts of the case. Counsel did not argue against her client 

but advised the court she found no issues to argue on his behalf. 

Counsel filed a brief following the procedures outlined in People v. Wende 

(1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that 

sets forth a summary of proceedings and facts but raises no specific issues. Under these 

circumstances, the court must conduct an independent review of the entire record. When 

the appellant himself raises specific issues in a Wende proceeding, we must expressly 

address them in our opinion and explain why they fail. (People v. Kelly (2006)

40 Cal.4th 106, 110, 120, 124.) 

Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the 

court with its independent review, counsel provided the court with information as to an 

issue that might arguably support an appeal. Counsel raised only one issue—did the trial 

court properly deny Gutierrez’s petition under Penal Code section 1170.95 (all further 

statutory references are to the Penal Code, unless otherwise indicated). 

We gave Gutierrez 30 days to file written argument on his own behalf, and 

he did. The issues Gutierrez raises are described below. 

We have independently reviewed the record in accordance with our 

obligations under Anders and Kelly. We found no arguable issues on appeal. We affirm 

the postjudgment order.

FACTS

In November 1998, an information charged Gutierrez with murder (§ 187, 

subd. (a)). The information alleged Gutierrez personally used a firearm during the 

commission of the alleged offense pursuant to sections 12022.5, subdivision (a), and 

12022.53, subdivision (b).
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The following year, Gutierrez pleaded guilty to second degree murder and 

admitted a weapon enhancement pursuant to section 12022.5, subdivision (a). Gutierrez 

offered the following factual statement as a basis for his guilty plea: “In Orange County 

on March 7, 1998 I personally used a firearm and shot and killed Jorge Reynoso. I did so 

with malice aforethought and the intent to kill but without premeditation and 

deliberation.” On the guilty plea form, Gutierrez acknowledged he would be sentenced 

to prison for 10 years on the weapon enhancement and to a consecutive 15 years to life 

sentence on the second degree murder charge. 

Gutierrez signed the bottom of the guilty plea form indicating “I understand 

each and every one of the rights outlined above and I hereby waive and give up each of 

them in order to enter my plea to the above charge(s). I am entering a plea of guilty 

because I am in fact guilty and for no other reason. I declare under penalty of perjury 

that I have read, understood, and personally initialed each item above and discussed them 

with my attorney, and everything on this form is true and correct. The signing and filing 

of this form is CONCLUSIVE EVIDENCE I have plead [sic] guilty to the enumerated 

charges herein.” Gutierrez’s trial counsel also signed the form. Consistent with the plea 

agreement, the trial court sentenced Gutierrez to 10 years for the weapons enhancement 

and to a consecutive indeterminate term of 15 years to life for second degree murder.

In March 2021, Gutierrez filed a petition for resentencing pursuant to 

section 1170.95. Gutierrez described the circumstances of the offense. He and his uncle 

began the evening drinking. His uncle took him to his friend’s house, where Gutierrez 

bought a gun. He put the gun, which was loaded, in the trunk of his uncle’s car. Later in 

the evening, Gutierrez and his uncle met two women at a bar. Gutierrez, his uncle, and 

the two women went back to his uncle’s house and had sex. Gutierrez got the gun, 

showed it to the women, and put it in his waistband. Gutierrez, his uncle, and the women 

then went to another bar. At this bar, when the women were walking away to get more 
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drinks, Gutierrez watched as one woman made eye contact with the victim. The victim 

and Gutierrez had never met or seen each other before. The victim made derogatory 

remarks towards Gutierrez, such as “‘fool, punk, you think you’re bad.’” The victim 

continued to bother Gutierrez by stating, “‘Come on, you think you’re bad.’” Gutierrez 

pulled out the gun and the victim ran towards the rear of the bar. Gutierrez chased the 

victim, shot the victim three times (once in the groin, twice in the chest), and the victim 

died. Security guards detained Gutierrez.

In his petition in the trial court, and in his supplemental brief to this court, 

Gutierrez cited to his statement to Detective Dan Stack. Attached to his petition in the 

trial court was a “Homicide Summary” that Stack prepared. The summary included 

Gutierrez’s statement that the “gun went off by accident” and that “he only intended to 

scare the victim.” Gutierrez cited to People v. Robertson (2004) 34 Cal.4th 156, and 

argued that based on the statement in the police report that he fired the gunshot to scare 

the victim and not with the intent to kill, he can no longer be convicted of second degree 

murder.

Gutierrez requested the trial court appoint counsel to assist him with his 

section 1170.95 petition. Without appointing counsel, the court denied Gutierrez’s 

petition indicating: “The petition does not set forth a prima face case for relief under the 

statute. A review of court records indicates defendant is not eligible for relief under the 

statute because the defendant does not stand convicted of murder or defendant’s murder 

conviction(s) is not based on felony-murder or on a natural and probable consequences 

theory of vicarious liability for aiders and abettors. [¶] ‘The court shall review the 

petition and determine if the petitioner has made a prima facie case showing that the 

petitioner falls within the provisions of this section.’ ([§] 1170.95[, subd.] (c). [¶] 

Petition denied.”
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DISCUSSION

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to 

amend the felony murder rule and the natural and probable consequences doctrine, as it 

relates to murder, to ensure that murder liability is not imposed on a person who is not the 

actual killer, did not act with the intent to kill, or was not a major participant in the 

underlying felony who acted with reckless indifference to human life.’ [Citation.] In 

addition to substantively amending sections 188 and 189 . . . Senate Bill 1437 added 

section 1170.95, which provides a procedure for convicted murderers who could not be 

convicted under the law as amended to retroactively seek relief. [Citation.]” (People v. 

Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)

Section 1170.95, subdivision (a), provides, in relevant part, “A person 

convicted of felony murder or murder under a natural and probable consequences theory 

may file a petition with the court that sentenced the petitioner to have the petitioner’s 

murder conviction vacated and to be resentenced on any remaining counts . . . .”

Under section 1170.95, if the petitioner makes a prima facie showing, the 

court must issue an order to show cause (OSC) and, absent a waiver and stipulation by 

the parties, hold a hearing to determine whether to vacate the murder conviction, recall 

the sentence, and resentence the petitioner. (§ 1170.95, subds. (c), (d)(1).) A prima facie 

showing under section 1170.95 requires the following: (1) an accusatory pleading was 

filed against the petitioner allowing the prosecution to proceed under a theory of felony 

murder or murder under the natural and probable consequences doctrine; (2) he or she 

was convicted of first or second degree murder following a trial, or accepted a plea offer

to first or second degree murder in lieu of trial, at which he or she could have been so 

convicted; and (3) that he or she could not be convicted of murder due to the amendments 

to sections 188 and 189. (§ 1170.95, subd. (a)(1)-(3).)
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The “authority to make determinations without conducting an evidentiary 

hearing pursuant to section 1170.95, [subdivision] (d) is limited to readily ascertainable 

facts from the record (such as the crime of conviction), rather than factfinding involving 

the weighing of evidence or the exercise of discretion (such as determining whether the 

petitioner showed reckless indifference to human life in the commission of the crime).” 

(People v. Drayton (2020) 47 Cal.App.5th 965, 980 (Drayton), disapproved on another 

ground in Lewis, supra, 11 Cal.5th at p. 963.) “If, accepting the facts asserted in the 

petition as true, the petitioner would be entitled to relief because he or she has met the 

requirements of section 1170.95[, subdivision] (a), then the trial court should issue an 

order to show cause. [Citation.]” (Drayton, supra, 47 Cal.App.5th at pp. 980-981.) An 

order summarily denying a section 1170.95 petition without issuing an OSC is a question 

of law subject to de novo review. (Id. at p. 981.)

I. Prima Facie Case

Gutierrez was required to establish (1) an accusatory pleading was filed 

against him allowing the prosecution to proceed under a theory of felony murder or 

murder under the natural and probable consequences doctrine; (2) he was convicted of 

first or second degree murder following a trial, or accepted a plea offer to first or second 

degree murder in lieu of trial, at which he could have been so convicted; and (3) that he 

could not be convicted of murder due to the amendments to sections 188 and 189. 

(§ 1170.95, subd. (a)(1)-(3), italics added.) 

In the factual basis of his guilty plea, Gutierrez, under penalty of perjury,

admitted he personally and intentionally shot and killed the victim. According to 

Gutierrez’s rendition of the facts in his petition, when he brandished the gun the victim 

attempted to flee to the rear of the bar. Gutierrez responded by chasing the victim and 

shooting him three times. The purpose of the statute was “‘to ensure that murder liability 

is not imposed on a person who is not the actual killer, did not act with the intent to kill, 
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or was not a major participant in the underlying felony who acted with reckless 

indifference to human life.’ [Citation.]” (People v. Cervantes(2020) 46 Cal.App.5th 

213, 221.) Gutierrez was the actual killer who admitted he intended to kill the victim. 

Based on Gutierrez’s rendition of the facts, he cannot show he could not have been 

convicted under sections 188 and 189. 

Gutierrez’s argument we should rely on a self-serving statement, not under 

oath, that he made when he was arrested is unavailing. His statement to Stack the “gun 

went off by accident” and that “he only intended to scare the victim,” are belied by 

Gutierrez’s subsequent statements to the court. These facts do not render Gutierrez 

eligible for relief under section 1170.95. 

Gutierrez cites to People v. Robertson (2004) 34 Cal.4th 156,1specifically 

statements in Justice Carlos R. Moreno’s concurrence and Justice Joyce L. Kennard’s 

dissent to support his claim he is entitled to resentencing. Gutierrez’s reliance on 

Robertson is misplaced. The question in Robertson was whether the trial court properly 

instructed the jury that defendant could be convicted of second degree felony murder 

based upon the predicate offense of discharging a firearm in a grossly negligent manner 

or whether the second degree felony-murder rule was inapplicable under the so-called 

merger doctrine. (Id. at p. 160.) Here, Gutierrez was not convicted, nor could he have 

been, under the felony-murder rule or any other theory of vicarious liability. He was the 

actual killer. Additionally, concurrences and dissents do not represent the judgment of 

the court. 

II. Appointment of Counsel

Our Supreme Court in Lewis, supra, 11 Cal.5th at page 957, held “the 

statutory language and legislative intent of section 1170.95 make clear that petitioners are 

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Robertson was overruled in People v. Chun (2009) 45 Cal.4th 1172. 
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entitled to the appointment of counsel upon the filing of a facially sufficient petition

[citation] and that only after the appointment of counsel and the opportunity for briefing 

may the superior court consider the record of conviction to determine whether ‘the 

petitioner makes a prima facie showing that he or she is entitled to relief.’ [Citation.]” 

But the court went on to say deprivation of the right to counsel is subject to a harmless 

error analysis under People v. Watson (1956) 46 Cal.2d 818. (Lewis, supra, 11 Cal.5th at 

pp. 957-958.) 

We therefore review for harmless error under the Watson standard of 

review, under which the defendant “must . . . ‘demonstrate there is a reasonable 

probability that in the absence of the error he . . . would have obtained a more favorable 

result.’ [Citations.]” (Lewis, supra, 11 Cal.5th at p. 974.) This means he “‘has the 

burden of showing “it is reasonably probable that if [he or she] had been afforded 

assistance of counsel his [or her] petition would not have been summarily denied without 

an evidentiary hearing.”’ [Citation.]” (Ibid.) 

Gutierrez failed to meet this burden. Again, in the factual basis he offered 

the court as a basis for his guilty plea, Gutierrez admitted he was the actual killer and that 

he acted with the intent to kill. The rendition of facts he offered the court in his petition, 

likewise, show he was the actual killer. Therefore, he is ineligible for resentencing as a 

matter of law because he cannot show that he “could not be convicted of first or second

degree murder because of changes to Section 188 or 189 made effective” in Senate Bill 

No. 1437. (§ 1170.95, subd. (a)(3).) He has not demonstrated there is a reasonable 

probability that had he been appointed counsel he would have obtained a more favorable 

result. Gutierrez was not prejudiced by the failure to appoint counsel.
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DISPOSITION

The postjudgment order is affirmed.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

MOORE, J.