Opinion
B320717
11-22-2022
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS JUAREZ, Defendant and Appellant.
Richard B. Lennon and Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. TA068411 Allen J. Webster, Jr., Judge. Affirmed.
Richard B. Lennon and Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Douglas Juarez appeals from an order denying his petition for resentencing under former section 1170.95 of the Penal Code.His appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), identifying no issues on appeal and requesting that we independently review the record to determine whether there are any arguable issues. We have undertaken that review and, finding no arguable issues, affirm the court's order.
Subsequent statutory references are to the Penal Code. In 2022, the Legislature renumbered section 1170.95 as section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.)
In People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, Division Two of this court held that when an appeal is other than a direct appeal from the defendant's conviction, the procedures established in Wende do not apply, and when, as here, "the defendant does not file a supplemental brief, the Court of Appeal may dismiss the appeal as abandoned." (Id. at p. 1039.) Our Supreme Court is currently considering whether Wende procedures apply in appeals from orders denying postconviction relief. (People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb 17, 2021, S266305; S266305, Supreme Ct. Mins., Feb. 17, 2021, p. 200.) Juarez's counsel acknowledges the holding in Cole, but urges this court to follow the Wende procedure until the Supreme Court provides further guidance. Without expressing any view on the issues pending in Delgadillo, we have reviewed this case in accordance with Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106.
I.
In 2003, a jury convicted Juarez of premeditated attempted murder (§§ 664, 187, subd. (a)) and found true allegations that he personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and committed the attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)). (People v. Juarez (June 24, 2005, B173819) [nonpub. opn.] (Juarez).) The court sentenced him to 15 years to life in prison for the attempted murder conviction, plus 25 years for the firearm enhancement and 10 years for the gang enhancement.
On Juarez's direct appeal, we concluded that the court failed to understand that it had discretion to strike the gang enhancement and directed the court to exercise such discretion. (Juarez, supra, B173819.) We otherwise affirmed the judgment. (Ibid.) After remand, the trial court struck the gang enhancement.
In April 2021, Juarez filed a petition for resentencing under former section 1170.95 and requested the appointment of counsel. The court granted his request for counsel.
The District Attorney filed a response to the petition in which he argued that the record of conviction shows that he was not convicted under the natural and probable consequences doctrine or any other theory that was affected by the enactment or amendment of former section 1170.95. The District Attorney supported its argument with a copy of the jury instructions given at Juarez's trial. The instructions do not include any instruction on aiding and abetting or the natural and probable consequences doctrine.
Defendant did not file a reply to the District Attorney's response.
On May 26, 2022, the court denied Juarez's petition, stating: Juarez "was convicted of one count of willful, premeditated and deliberate attempted murder but not pursuant to a natural and probable consequences theory of culpability. The jury was not instructed on any aiding and abetting theory. The only theory under which petitioner was prosecuted was actual malice. Petitioner cannot make a prima facie showing that he is eligible for resentencing under . . . section 1170.95."
Defendant filed a timely notice of appeal and we appointed counsel for him.
II.
On September 15, 2022, Juarez's counsel filed his brief pursuant to Wende, which provided a summary of the factual and procedural history of the case. Counsel also submitted his declaration that he has reviewed the entire record on appeal, and that he has written to Juarez informing him of his intention to file the Wende brief and of Juarez's right to file a supplemental brief. Counsel further stated that he will remain available to brief any issues upon request. The next day, this court sent a letter to Juarez informing him that he may submit within 30 days a supplemental brief or letter stating any grounds for appeal, or contentions, or arguments that he wishes this court to consider.
Juarez did not submit a supplemental brief or otherwise inform us of any issues for this court to consider.
III.
We are satisfied that Juarez's counsel has fully complied with his responsibilities. (Wende, supra, 25 Cal.3d at p. 441.)
We have reviewed the entire record on appeal and found no arguable issues to be briefed. Because the trial court did not instruct Juarez's jury as to the natural and probable consequences doctrine or other theory of imputed malice, he is not entitled to relief under former section 1170.95 as a matter of law. (See People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Cortes (2022) 75 Cal.App.5th 198, 205; People v. Daniel (2020) 57 Cal.App.5th 666, 677; People v. Soto (2020) 51 Cal.App.5th 1043, 1055; People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5.) We therefore affirm the court's order. (Wende, supra, 25 Cal.3d at p. 443.)
DISPOSITION
The court's May 26, 2022 order denying Juarez's petition for resentencing is affirmed.
We concur: BENDIX, J. WEINGART, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.