Filed 9/18/26 P. v. Amezcua CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B349656
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA067568-
v. 02)
HARVEY AMEZCUA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mike Camacho, Judge. Affirmed.
Harvey Amezcua, in pro. per.; and Laura Arnold, under
appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
__________________________
Harvey Amezcua appeals from the superior court’s order
denying his petition for resentencing filed under Penal Code
section 1172.6.1 We appointed counsel to represent Amezcua on
appeal. After reviewing the record, counsel for Amezcua filed a
brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 that
did not identify any arguable issues. After reviewing the
contentions in Ortega’s supplemental brief, we have not
identified any either. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 17, 2004 Maria Duarte drove Amezcua and
Michael Navarez, members of the Happytown criminal street
gang, to Pomona to look for rival Westside gang members.2
Amezcua was sitting in the front passenger seat; Navarez was
sitting behind Amezcua in the back passenger seat. As Duarte
drove the car, the passenger-side windows were rolled down;
Amezcua was holding a gun, and Amezcua and Navarez shot at
and wounded several teenagers who had been taking turns riding
a motor scooter outside a nearby residence. One of the teenagers
who was shot was Hector Gonzalez, who had previously served
time with Amezcua at a juvenile camp in Lancaster. Hector’s
brothers, Andy and Santiago, and Hector’s friend Johnny Salazar
1 Further undesignated statutory references are to the Penal
Code.
2 The factual background is taken from the testimony at the
October 6, 2004 preliminary hearing.
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were also shot.3 Hector, Andy, Santiago, and Salazar testified at
the preliminary hearing.
On October 21, 2004 Amezcua was charged by information
with four counts of attempted willful, deliberate, and
premeditated murder (§§ 187, subd. (a), 664). The information
further alleged that Amezcua personally and intentionally
discharged a firearm (§ 12022.53, subds. (b)-(e)(1)) and caused
great bodily injury within the meaning of section 12022.7,
subdivision (a).
Amezcua pleaded no contest to three counts of attempted
first degree murder. Amezcua also admitted that he personally
and intentionally discharged a firearm (§ 12022.53, subd. (c)),
and that he committed the crime in association with a criminal
street gang with the specific intent to promote, further, or assist
in criminal conduct by gang members (§ 186.22, subd. (b)(1)).
Pursuant to the plea agreement, Amezcua was sentenced to 50
years four months in prison.
On July l0, 2022 Amezcua, representing himself, filed a
form petition seeking to be resentenced under former
section 1170.95 (now § 1172.6.)4 Amezcua checked the boxes
indicating that he was “convicted of murder, attempted murder,
or manslaughter following a trial or I accepted a plea offer in lieu
of a trial at which I could have been convicted of murder or
attempted murder” and that he “could not presently be convicted
3 We refer to the Gonzalez brothers by their first names to
avoid confusion.
4 Effective June 30, 2022, the Legislature renumbered
former section 1170.95 to section 1172.6 without substantive
change. (Stats. 2022, ch. 58, § 10.)
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of murder or attempted murder.” Amezcua requested and was
appointed counsel.
The People opposed the motion for resentencing on the
basis that Amezcua failed to make a prima facie showing that he
was eligible for resentencing “because he was prosecuted as the
actual shooter who acted with actual malice and admitted the
personal use and personal discharge allegations.” The People
attached to their opposition a copy of the information, the
preliminary hearing transcript, the plea transcript, and the trial
court’s sentencing minute order.
The superior court determined Amezcua made a prima
facie showing and set the matter for an evidentiary hearing. At
the evidentiary hearing held on October 14, 2025, the People
submitted on the preliminary hearing transcript and their
evidentiary hearing brief, in which they stated, “Mr. Amezcua
was identified as being one of two shooters by various witnesses
and/or victims involved in the case.” Amezcua’s attorney
challenged the credibility of the witnesses and argued that “with
regard to the admissible eyewitness record, it’s inconsistent
between the three witnesses that testified as to who actually
fired.” He did not call any witnesses.
The superior court denied the motion for resentencing. The
court explained that “the parties . . . were not strangers with
one another. They knew one another from the neighborhood, and
that lessens the issue as to whether or not there could be a
misidentification. As a matter of fact, Hector Gonzalez, when he
testified, he identified Mr. Amezcua by his gang name, as well as
his calling name ‘Harvey.’ He clearly identified him as being
one of the two shooters . . . . I think that clarifies the issue as to
whether or not Mr. Amezcua was an actual shooter by competent
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evidence, certainly evidence that satisfies the burden.” The court
stated it was convinced that Amezcua was ineligible for relief
under section 1172.6 because he was the “actual perpetrator” of
the attempted murders and had the intent to kill.
Amezcua timely appealed.
DISCUSSION
We appointed counsel to represent Amezcua in this appeal.
After reviewing the record, counsel did not identify any arguable
issues. On June 22, 2026 counsel advised Amezcua that she was
filing a brief stating she was unable to find any arguable issues
and that Amezcua had the right to file a supplemental brief. On
June 22, 2026 this court ordered counsel to send a record of the
appeal to Amezcua within 30 days and further advised Amezcua
that he “may submit a supplemental brief or letter stating any
grounds for an appeal, or contentions, or arguments that
appellant wishes this court to consider.”
On July 27, 2026 we received a three-page handwritten
supplemental brief from Amezcua. In his supplemental brief,
Amezcua argued he received ineffective assistance of trial counsel
because his attorney at the evidentiary hearing failed “to present
other evidence [and] witnesses” showing that he was not the
actual shooter; failed to call an expert to rebut the argument that
“two guns were used” in the killing in order to create “doubt as to
Petitioner’s intent and malice and actual . . . liability”; and failed
to call witnesses to show the crime was committed by a different
person because the witnesses “were inconsistent about who did
what.”
5
Section 1172.6 authorizes a person convicted of felony
murder, murder under the natural and probable consequences
doctrine, attempted murder under the natural and probable
consequences doctrine, or manslaughter to petition the superior
court to vacate the conviction and resentence the defendant on
any remaining counts if he or she could not now be convicted of
murder or attempted murder because of the legislative changes to
the definitions of murder.5 (People v. Emanuel (2025) 17 Cal.5th
867, 880; People v. Arellano (2024) 16 Cal.5th 457, 468-469;
People v. Curiel (2023) 15 Cal.5th 433, 449-450.) Because a
section 1172.6 hearing is “a continuation of the underlying
criminal proceeding” (Gomez v. Superior Court (2024)
100 Cal.App.5th 778, 787), the only issue before the superior
court is whether the “petitioner could not presently be convicted
of murder or attempted murder.” (§ 1172.6, subd. (a)(3); see
People v. Clements (2022) 75 Cal.App.5th 276, 294 [“The question
is whether the petitioner committed murder under a still-valid
theory, and that is a factual question.”].)
If, as here, appellate counsel finds no arguable issues exist
in a postconviction appeal from the denial of a section 1172.6
petition, the reviewing court is not required to independently
5 Under section 1172.6, subdivision (a), “[a] person convicted
of felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in
a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter may file a petition with
the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts” if specified
conditions are met.
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review the record. (People v. Delgadillo, supra, 14 Cal.5th at
p. 232.) However, “[i]f the defendant subsequently files a
supplemental brief or letter, the Court of Appeal is required to
evaluate the specific arguments presented in that brief and to
issue a written opinion.” (Ibid.)
Amezcua argues his trial attorney provided ineffective
assistance of trial counsel in his representation during the
evidentiary hearing. To prevail on a claim of ineffective
assistance of counsel, a defendant bears the burden to show
(1) his or her “‘“‘counsel’s representation fell below an objective
standard of reasonableness under prevailing professional
norms’”’” and (2) he or she “‘“‘suffered prejudice to a reasonable
probability, that is, a probability sufficient to undermine
confidence in the outcome.’”’” (People v. Johnson (2016)
62 Cal.4th 600, 653; accord, People v. Mickel (2016) 2 Cal.5th 181,
198; Strickland v. Washington (1984) 466 U.S. 668, 687-692.)
Moreover, “[o]n direct appeal, if the record ‘“sheds no light
on why counsel acted or failed to act in the manner challenged,”’
we must reject the claim ‘“unless counsel was asked for an
explanation and failed to provide one, or unless there simply
could be no satisfactory explanation.”’” (People v. Caro (2019)
7 Cal.5th 463, 488; accord, People v. Mickel, supra, 2 Cal.5th at
p. 198 [“a reviewing court will reverse a conviction based on
ineffective assistance of counsel on direct appeal only if there is
affirmative evidence that counsel had ‘“‘no rational tactical
purpose’”’ for an action or omission”].)
Amezcua has not met his burden to show ineffective
assistance of counsel because the record does not show what
witnesses Amezcua’s attorney could have called to testify he was
not the actual shooter or that it was Navarez or someone else
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who alone shot at the teenagers. Nor did he present evidence
showing what testimony an expert would have provided to prove
that only one gun was used in the shooting. In the absence of
this evidence, we lack the ability to evaluate whether the
representation provided by Amezcua’s trial counsel fell below an
objective standard of reasonableness, or whether there was a
reason for his counsel’s conduct. (See People v. Kelly (1997)
40 Cal.4th 106, 122, fn. 4 [“an appellate court should not find
ineffective assistance of counsel unless all facts relevant to that
claim have been developed in the record”]; see also People v. Caro,
supra, 7 Cal.5th at p. 488; People v. Johnson, supra, 62 Cal.4th at
p. 653.)
Amezcua also contends the evidence did not support the
superior court’s finding at the evidentiary hearing that he had
fired his gun at the teenagers, arguing there was inconsistent
testimony as to who was the shooter. We review the superior
court’s decision to deny the petition after an evidentiary hearing
for substantial evidence. (People v. Emanuel (2025) 17 Cal.5th
867, 885; People v. Reyes (2023) 14 Cal.5th 981, 988-989.) “Under
this standard, we review the record ‘“‘in the light most favorable
to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’”’”
(Reyes, at p. 988; accord, Emanuel, at p. 885.)
Amezcua argues that Hector’s testimony at the preliminary
hearing identifying Amezcua as the shooter was inconsistent
with the testimony of Andy, Santiago, and Salazar as to who had
a gun. However, Santiago testified that Amezcua was one of the
shooters and a second gun was fired from the back seat. A
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detective recounted a statement that Duarte made to him that
Amezcua was in the front passenger seat and Nevarez (“Taz”)
was in the rear passenger seat, and that Duarte heard two guns
fire. Andy testified he saw “Taz” with a gun and that Amezcua
was in the car, although Andy did not recall seeing Amezcua with
a gun. Amezcua has not cited any pages in the record that show
there was inconsistent testimony as to the identity of the
shooters. In any event, as discussed, we review the evidence in
the light most favorable to the superior court’s decision. As the
court observed, Hector identified Amezcua as one of two shooters
and stated Amezcua was sitting in the front passenger seat
holding a gun as the vehicle drove by the teenagers with its
windows rolled down. Hector’s testimony, along with that of
Santiago and the detective, provided substantial evidence that
Amezcua was beyond a reasonable doubt the actual shooter.
DISPOSITION
The order denying Amezcua’s petition for resentencing is
affirmed.
FEUER, J.
We concur:
MARTINEZ, P. J.
STONE, J.
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