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People v. Arzu

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 28, 2020
B295694 (Cal. Ct. App. Jan. 28, 2020)

Opinion

B295694

01-28-2020

THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER ARZU, Defendant and Appellant.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA038171) THE COURT:

Alexander Arzu (appellant) was charged with conspiring to kill George Bottoms (Bottoms) (Pen. Code, §§ 182, 187; count 1); the murder of Bottoms by discharging a handgun from a vehicle with the intent to inflict death (§§ 187, 189, 190.2, subd. (a)(21), 12022, subd. (a)(1); count 2); and assault with a firearm (§§ 245, subd. (a)(2), 12022, subd. (a)(1); count 3). In 1999, appellant was convicted on all counts. On count 2, the base count, appellant was sentenced to life without possibility of parole plus one year under section 12022, subdivision (a)(1). On count 1, he was sentenced to 25 years to life. On count 3, he was sentenced to a concurrent term of three years plus one year under section 12022, subdivision (a)(1).

All further statutory references are to the Penal Code unless otherwise indicated. --------

Senate Bill No. 1437 went into effect on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) It added section 1170.95 and amended sections 188 and 189. "As amended, section 188 limits a finding of malice: 'Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.' (§ 188, subd. (a)(3).) As added by Senate Bill [No.] 1437, subdivision (e) of section 189 reads: 'A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) . . . in which a death occurs is liable for murder only if one of the following is proven: [¶] '(1) The person was the actual killer. [¶] '(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] '(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life[.]" (People v. Ramirez (2019) 41 Cal.App.5th 923, 928 (Ramirez).) Section 1170.95 permits a defendant to file a petition with the court that sentenced the defendant for resentencing if he was convicted under a theory of felony murder or murder under the natural and probable consequences doctrine, and if he could not have been convicted under the changes to sections 188 and 189 made effective January 1, 2019. (Ramirez, supra, 41 Cal.App.5th at p. 929.)

On January 3, 2019, appellant filed a petition for resentencing pursuant to section 1170.95. He declared that he was convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine. On January 15, 2019, the petition was denied. This appeal followed. Appellant's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) raising no issues. On September 13, 2019, we notified appellant of his counsel's brief and gave him leave to file his own brief or letter stating grounds for appellate relief. Appellant did not file a brief or letter. There is no basis for reversal.

A condition for relief is that "[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." (§ 1170.95, subd. (a)(1).) Appellant was charged with conspiring to kill and killing Bottoms. The information did not allow the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. Thus, appellant was not entitled to be resentenced under section 1170.95.

Moreover, the record reveals that the jury found that appellant conspired to kill and killed Bottoms and then convicted him of those charges. Section 1170.95 relief is not available to an actual killer.

Upon due consideration, we are satisfied that appellant's counsel complied with her responsibilities. We conclude appellant has received adequate and effective appellate review of the judgment entered against him by virtue of counsel's compliance with the Wende procedure as well as our review of the record. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. /s/_________
LUI, P. J. /s/_________
ASHMANN-GERST, J. /s/_________
CHAVEZ, J.


Summaries of

People v. Arzu

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 28, 2020
B295694 (Cal. Ct. App. Jan. 28, 2020)
Case details for

People v. Arzu

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER ARZU, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Date published: Jan 28, 2020

Citations

B295694 (Cal. Ct. App. Jan. 28, 2020)