P. v. Pena

Filed 10/6/17 P. v. Pena 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN ERIC PENA,
Defendant and Appellant.
G054582
(Super. Ct. No. 10NF0523)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed.
Daniel J. Kessler, 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 Juan Eric Pena on appeal. Counsel filed
a brief that set forth the facts of the case. Counsel did not argue against his client but
advised the court he found no issues to argue on his behalf. We gave Pena 30 days to file
written argument on his own behalf, which he did.
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 (Kelly).)
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
issues that might arguably support an appeal. Counsel raised the following two issues:
(1) whether the trial court erred by denying Pena’s motion to relieve his court appointed
counsel; and (2) whether the court erred by sentencing Pena to serve 32 years to life in
prison.
In his supplemental brief, Pena asserts there was a clerical error in the
reporter’s transcript. He indicates that rather than testifying he wanted to “wound” the
victim, he testified he wanted to “warn” the victim. He alleges the court prejudicially
erred by denying his motion to bifurcate and set aside the gang evidence. Pena asserts he
would likely have received a better result had the gang evidence been excluded. He also
alleges instructional error because the court failed to instruct the jury on manslaughter
and his attorney was ineffective for failing to request the instruction. Pena also contends
the court erred by requiring him to register as a gang member, as described in section

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Penal Code section 186.30.1
Lastly, Pena argues both trial and appellate counsel were
ineffective for failing to raise the issues Pena raised in his supplemental brief.
After briefing was complete, we invited supplemental letter briefs on the
issue of whether the trial court erred by requiring Pena to register as a gang member
pursuant to section 186.30. Appellate counsel filed a supplemental brief noting the trial
court vacated the gang registration requirement. Pena filed a second supplemental brief,
raising the same errors he argued in his first brief.
We have reviewed the record in accordance with our obligations under
Wende and Anders, the information provided by counsel, and the issues Pena raised in his
two supplemental briefs. We found no arguable issues on appeal. The judgment is
affirmed.
FACTS
In September 2013, an amended information charged Pena with the
following: conspiracy to commit murder (§ 182, subd. (a)(1)) (count 1); assault with a
firearm against Thomas Coffman (§ 245, subd. (a)(2)) (count 2); assault with a firearm
against Alexis Uribe (§ 245, subd. (a)(2)) (count 3); attempted murder of Miguel Sanchez
(§§ 664, subd. (a), 187, subd. (a)) (count 4); attempted murder of Felipe Sanchez (§§ 664,
subd. (a), 187, subd. (a)) (count 5); attempted murder of Aaron Guardado (§§ 664, subd.
(a), 187, subd. (a)) (count 6); and street terrorism (§ 186.22, subd. (a)(1)) (count 7). The
information alleged the following enhancements: street terrorism (§ 186.22,
subd. (b)(1)), as to counts 1 through 6; personal discharge of a firearm causing great
bodily injury (§ 12022.53, subd. (d)), as to count 4; personal discharge of a firearm
(§ 12022.53, subd. (c)), as to counts 5 and 6; personal use of a firearm (§ 12022.5,
subd. (a)), as to counts 1 through 6; and vicarious use of a firearm by a gang member
1
All further statutory references are to the Penal Code.

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(§ 12022.53, subds. (b), (e)(1)), as to counts 1, 2, and 3. On the prosecutor’s motion, the
court dismissed count 1.
The jury found Pena guilty of willful and premeditated attempted murder
(count 4), and street terrorism (count 7). As to count 4, the jury found Pena personally
discharged a firearm causing great bodily injury to the victim (§ 12022.53, subd. (d)),
acted for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury acquitted
Pena of counts 2, 3, and 6. The jury was unable to reach a verdict on count 5, and the
court dismissed the count on the prosecution’s motion. The trial court sentenced Pena to
40 years to life in prison consisting of 15 years to life for the attempted murder offense
based on the gang enhancement finding, and a consecutive term of 25 years to life for the
firearm enhancement finding.
On appeal, Pena raised the following two issues: (1) whether insufficient
evidence supports his conviction for street terrorism and the jury’s finding on the street
terrorism enhancement; and (2) whether the court erred by allowing the gang expert to
testify regarding his conversations with Pena’s brother Gilberto and Pablo Hernandez.
This court reversed the gang enhancement and gang participation offense
findings because they were not supported by legally sufficient evidence. A recitation of
the facts underlying each of the counts is not necessary to resolve this appeal, but are
provided in our prior unpublished opinion. (People v. Pena (Nov. 12, 2015, G049885)
[nonpub. opn.].)
The trial court resentenced Pena in absentia. The court vacated the
sentence on the gang enhancement and dismissed the gang participation offense. It
resentenced Pena to 32 years to life in prison. When he learned about the resentencing
proceeding, Pena, who was serving his prison sentence, wrote a letter to the trial court
and objected he was not present in court for the resentencing hearing. Pena also filed a
notice of appeal challenging the court’s actions at the resentencing hearing.

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At his request, Pena was returned to the Orange County Superior Court for
another resentencing hearing. The trial court began by hearing Pena’s Marsden2
motion.
The court cleared the courtroom except for court staff, Pena, and his court appointed
counsel. The court ordered the transcript of the hearing sealed. Pena complained his
appointed trial counsel did not tell him about the resentencing and did not communicate
with him as much as Pena believed he should. Pena expressed a desire to file a motion
for new trial and indicated trial counsel would not do it for him. In conclusion, Pena
noted he believed he was receiving ineffective assistance of counsel because of a lack of
communication from counsel and his distrust of counsel.
The trial court asked counsel if he had anything to add. Counsel stated this
was the fourth Marsden motion Pena had filed. He noted that at times Pena was thrilled
with counsel’s representation and then an hour later he complained he was receiving
terrible representation. Counsel stated he did not “know what’s going on in . . . Pena’s
head.” Counsel admitted he had erred in waiving Pena’s presence for resentencing, but
expressed a belief he had corrected the error. The court asked counsel if he could
communicate with Pena and discuss with him the possibility of other appellate options.
Counsel indicated he would. The court gave Pena another opportunity to address the
court, and Pena reiterated his complaint counsel did not adequately communicate with
him.
The trial court denied Pena’s motion to relieve his court-appointed attorney,
concluding any breakdown in communication could be remedied. The court opined trial
counsel was in a far better position to assist Pena with posttrial matters because he was
present at the trial. Lastly, the court noted that although Pena had not been present for
2
People v. Marsden (1970) 2 Cal.3d 118.

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the initial resentencing, the court had sentenced him to the lowest sentence permissible by
law.
Months later, Pena was present in court at a new resentencing hearing. The
court again vacated the sentence on the gang enhancement and dismissed the gang
participation offense. It resentenced Pena to 32 years to life in prison for count 4, plus a
consecutive term of 25 years to life in prison for firearm enhancement finding. The court
ordered all other terms of the original sentence to remain in effect. One of the terms of
the original sentence was that Pena register as a gang member pursuant to section 186.30.
Pena filed a timely notice of appeal.
DISCUSSION
In his supplemental brief, Pena argued it was error for the trial court to
impose gang registration at the resentencing after remand. After reviewing the record,
we determined the imposition of gang registration was an arguable issue. We invited
supplemental briefing on the issue of whether the court erred when it imposed a
registration requirement pursuant to section 186.30.3
In response, appellate counsel
provided this court with a copy of the court’s minutes from July 28, 2017. On that date,
the court vacated the section 186.30 registration requirement rendering this issue moot.
Pena’s remaining claims are precluded because those claims could have been raised in his
first appeal.
The scope of a defendant’s appeal from judgment resentencing him on
remand following reversal of conviction is limited to matters arising in connection with
the second sentencing. (People v. Pineda (1967) 253 Cal.App.2d 443, 448-449, 455.)
All available arguments must be raised in the initial appeal from a judgment. (People v.
3
Section 186.30 requires that any person convicted of a gang offense or gang
enhancement set forth in section 186.22, subdivisions (a) and (b), respectively, must
register with law enforcement.

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Senior (1995) 33 Cal.App.4th 531, 535.) California law precludes a criminal defendant
from raising contentions in a piecemeal fashion by successive proceedings attacking the
validity of the underlying judgment. (Id. at p. 537.) Thus, when a defendant had an
opportunity to challenge his sentence in an earlier appeal and failed to do so, he or she
may not belatedly raise the same issue in a later appeal. (Id. at pp. 534-535.) The issues
the defendant failed to raise in the earlier appeal are deemed waived, absent a showing of
good cause or justification for the delay. (Id. at p. 533.) When all of the factual
predicates of the second appeal existed at the time of the first appeal, there is no
justification for failing to raise the new issues in the earlier appeal. (Id. at p. 538.)
All the facts necessary to make a claim of error in the denial of a motion to
bifurcate the gang counts and a claim of instruction error were available at the time of his
initial appeal. Pena has made no showing of good cause or justification for not raising
these issues in his first appeal. Accordingly, these issues are deemed waived.
Pena argues, for unspecified reasons, trial counsel was ineffective and
appellate counsel was ineffective for failing to raise the issues Pena raised in his
supplemental brief. A claim of ineffective assistance of counsel is more appropriately
decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264,
266-267.) To prevail on a claim of ineffective assistance of counsel, the defendant must
show counsel’s action or inaction was not a reasonable tactical choice, and in most cases
“‘“the record on appeal sheds no light on why counsel acted or failed to act in the manner
challenged . . . .”’” (Id. at p. 266.) Accordingly, we decline to address Pena’s claim of
ineffective assistance of counsel as part of this appeal.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and
Anders, supra, 386 U.S. 738, including the possible issues raised by appellate counsel,
has disclosed no reasonably arguable appellate issue.

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DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.

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