Opinion
A158370
03-25-2020
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO AURELIO ARIAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR922143)
Alejandro Aurelio Arias appeals from an order denying his petition for resentencing under Penal Code section 1170.95. (See § 1237, subd. (b); Teal v. Superior Court (2014) 60 Cal.4th 595, 597.) Arias's appointed appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442. Our independent review of the record reveals no arguable issues, and we affirm.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
A.
Senate Bill 1437 (Stats 2018, Ch. 1015), which became effective on January 1, 2019, "addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending . . . sections 188 and 189, as well as by adding . . . section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions." (People v. Martinez (2019) 31 Cal.App.5th 719, 722-723.) Senate Bill 1437 limits accomplice liability by "amending the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f); accord, §§ 188, subd. (a)(3), 189, subd. (e).)
A section 1170.95 petition may be filed when all three of the following conditions are met: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a).) If the petitioner makes a prima facie showing of eligibility for relief, the court "shall issue an order to show cause." (§ 1170.95, subd. (c).)
B.
In 2009, after receiving numerous warnings regarding the danger of speeding, Arias drove his car into an intersection against a red light at approximately 100 miles per hour, lost control of his vehicle, and struck another car head on. The driver of the other car was killed. Arias pled no contest to second degree murder (§ 187, subd. (a)). The parties stipulated that the evidence presented at the preliminary hearing provided a factual basis for the plea. Arias was sentenced to 15 years to life in prison.
C.
In 2019, Arias filed a pro se petition seeking resentencing under section 1170.95. Specifically, in a preprinted form request, Arias alleged he pled no contest six years earlier because otherwise he could have been convicted of second degree murder under the felony-murder rule or the natural and probable consequences doctrine, and that he could not now be so convicted after the amendments to sections 188 and 189.
At the hearing to determine whether Arias had established a prima facie case, Arias was represented by counsel but not personally present. Arias's counsel stated he had reviewed the evidence presented at the preliminary hearing, which showed Arias was the only person involved in the homicide. The prosecutor agreed that no other actors were involved and thus Arias could not establish a prima facie case.
The trial court denied the petition, explaining that Arias, who was unquestionably the actual killer and not an accomplice, did not meet the statutory criteria for relief. (See §§ 188, subd. (b), 189, subd. (e)(1).)
DISCUSSION
Arias's appellate counsel advised Arias of his right to file a supplemental brief to bring to this court's attention any issue he believes deserves review. Arias did so, suggesting he made a prima facie showing of eligibility for resentencing.
Arias is wrong. The information alleged he, as the actual perpetrator, committed murder with malice aforethought. The charging documents did not permit the prosecutor to proceed under the felony murder rule or the natural and probable consequences doctrine. When he pled no contest to second degree murder, he faced vehicular murder liability on an implied malice theory. (See People v. Ortiz (2003) 109 Cal.App.4th 104, 110 [malice may be implied when facts demonstrate wanton disregard for life and subjective awareness of risk].) As the actual killer, Arias was not eligible for relief under section 1170.95. (People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted March 18, 2020, S260410.)
We do not consider Arias's suggestion that his appointed counsel coerced him to plead no contest. The issue is not properly before us on his appeal from the order denying his section 1170.95 petition. (See In re J.F. (2019) 39 Cal.App.5th 70, 75 [jurisdiction on appeal limited to judgment or order appealed from in notice of appeal].)
We have reviewed the entire record and identified no arguable issues.
DISPOSITION
The order denying Arias's section 1170.95 petition is affirmed.
/s/_________
BURNS, J. We concur: /s/_________
JONES, P.J. /s/_________
SIMONS, J.