Opinion
G057681
10-15-2019
THE PEOPLE, Plaintiff and Respondent, v. YADIRA ONOFRE, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF10006225) OPINION Appeal from a judgment of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
On October 3, 2007, appellant Yadira Onofre was convicted by a jury of second degree murder and child abuse, charges growing out of the death of her live-in boyfriend's five-year-old daughter, who was beaten to death by her father Angel Garcia. The child died as the result of a severe beating by Garcia, what the coroner described as "homicidal violence including blunt force head injury." Appellant was convicted on the basis of implied malice, not because of anything she did, but because she failed to act to protect the child when she had a legal duty to do so as the child's de facto parent and caretaker. (People v. Heitzman (1994) 9 Cal.4th 189, 197-199.) Appellant was sentenced to four years imprisonment for the child abuse and 15 years to life for the second degree murder. We affirmed her conviction in People v. Garcia (Mar. 2, 2015, G050715) [nonpub. opn.].
On January 7, 2019, appellant filed a petition seeking to vacate her murder conviction pursuant to subsequently-enacted Penal Code section 1170.95. That petition was denied by the trial court on the basis that, "There were no aiding and abetting instructions. There were no felony murder instructions. The defendant was convicted under [an] implied malice murder theory of second degree murder, but there simply w[as] no aiding and abetting and there w[as] no felony murder." The statute provides relief only for petitioners convicted of murder under a felony murder or natural and probable consequences theory. Since the information filed against petitioner was not based upon either of those theories, the court ruled she was not entitled to relief.
Appellant appealed, and we appointed counsel to represent her. Counsel filed a brief which set forth the facts of the crime itself and the court's ruling on appellant's petition. Counsel did not argue against his client but advised us he could find no issues to argue on appellant's behalf. Appellant was invited to express her own objections to the proceedings against her but did not do so. We reconsidered the application of Penal Code section 1170.95 to her case and have also scoured the record for any other mistakes, as we are required to do when appellate counsel reports an inability to find an appellate issue. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon which appellant would prevail, but only issues upon which she might possibly prevail.
We have examined the record and found no arguable issue. Appellant does not fall within the ambit of the statute because the prosecution was based not on a felony murder theory or a natural and probable consequences theory, but upon personal implied malice. There is no relief available under Penal Code section 1170.95 for someone whose conviction is based on that theory.
To his credit, very thorough appellate counsel went further than the denial of appellant's petition in trying to find an arguable appellate issue. He considered the possibility it might have been error for the court below to deny the petition without appointing counsel for appellant. And it may have been. The statute says, "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner." (Pen. Code, § 1170.95, subd. (c).)
That language is not clear as far as when the statutory right to counsel attaches. But we need not determine whether failure to appoint counsel was error in this case because the issue has since been reviewed both by appointed appellate counsel and this court, and both have determined there was no prima facie case for application of the statute. Had counsel been appointed below, he/she could have done no more than we have done, and it would be an idle act to send the matter back now to appoint counsel to consider making an argument appellate counsel and this court have concluded to be legally insufficient.
We have been unable to find any other issues that might be argued in appellant's behalf. Our review is limited to issues pertaining to her Penal Code section 1170.95 petition, and we can find nothing there that might lead to reversal. The judgment is therefore affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.