People v. Gutierrez CA2/6

Facts Our factual summary is taken verbatim from the factual summary at pages 2-4 of the unpublished Gutierrez I slip

2 opinion.2 We summarize the facts “for background purposes and to provide context for the parties’ arguments.” (People v. Flores (2022) 76 Cal.App.5th 974, 978, fn. 2.) In determining whether appellant made a prima facie case for relief, we do not consider the facts as stated in Gutierrez I. (See Id. at p. 988 [“the factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for resentencing. (§ [1172.6], subd. (d)(3) . . . .) If such evidence may not be considered at an evidentiary hearing to determine a petitioner’s ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner’s ineligibility for resentencing at the prima facie stage”].) “In March 2010 [appellant] and Garcia were members of the Breed Street criminal street gang. One or two days before March 29, 2010, [appellant, Garcia and Contreras] were inside Maria Luna's apartment . . . . [Appellant] and Garcia said that they were going to ‘jump’ Contreras…