Opinion
G062792
06-27-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALFREDO AVILEZ, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 97CF3348, Terri K. Flynn-Peister, Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
Defendant Jose Alfredo Avilez appeals from an order denying his petition for resentencing made pursuant to Penal Code section 1172.6. His appointed counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) to inform the court that counsel had found no arguable issues and to request that we exercise our discretion to conduct an independent review of the record. Counsel also suggested one issue for our consideration. Defendant was given the opportunity to file a supplemental brief on his own behalf and was given notice pursuant to Delgadillo that if no supplemental brief was filed, the court might dismiss the appeal as abandoned.
All statutory references are to the Penal Code.
Defendant did not file a supplemental brief. We nonetheless exercise our discretion to conduct an independent review of the record. (Delgadillo, supra, 14 Cal.5th at p. 232.) We have conducted our independent review, find no arguable issues on appeal, and conclude the issue suggested by counsel does not have merit. Accordingly, we affirm the postjudgment order.
FACTS
In September 2000, defendant was charged by amended information with two counts of murder (§ 187; counts 1 &7), four counts of attempted premeditated murder (§§ 187, subd. (a), 664; counts 2, 3, 8, & 9), one count of assault with a semi-automatic firearm (§ 245, subd. (b); count 4), two counts of carjacking (§ 215, subd. (a); counts 5 &6), one count of kidnapping (§ 207, subd. (a); count 10), two counts of possession of a firearm by a felon (former § 12021, subd. (a)(1); counts 13 &15), one count of robbery (§ 211; count 14), and one count of active participation in a criminal street gang (§ 186.22, subd. (a); count 16). A multiple murder special circumstance (§ 190.2, subd. (a)(3)) was alleged for counts 1 and 7, and a drive-by special circumstance (§ 190.2, subd. (a)(21)) was alleged for count 7.
Section 12021 was repealed and reenacted as section 29800, operative January 1, 2012. (Stats. 2010, ch. 711, § 4.)
The amended information also alleged the crimes charged in counts 1 through 10 and 14 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and defendant personally used a firearm in committing them (§ 12022.5, subd. (a)). The amended information alleged defendant was armed with a firearm in the commission of the crime charged in count 7 (§ 12022, subd. (a)(1)) and personally used a firearm in the commission of the crime charged in count 14 (§ 12022.53, subds. (b), (e)(1)).
A jury trial was conducted. The trial court granted defendant's motion to dismiss count 10. The jury was not instructed on felony murder or the natural and probable consequences doctrine.
In October 2000, the jury found defendant guilty on counts 1 through 9 and 11 through 16. The jury found to be true the special circumstance allegations, the criminal street gang allegation, and the firearm enhancements allegations, except for the firearm enhancement allegations under section 12022.5 alleged as to counts 3 and 4. As to count 3, the jury found to be true the lesser included allegation that defendant was armed during the commission of the crime. (§ 12022, subd. (a)(1).)
The trial court struck the prior conviction allegation and sentenced defendant to life imprisonment without the possibility of parole plus 18 years. In a nonpublished opinion, a panel of this court affirmed the conviction and sentence. (People v. Avilez (Dec. 30, 2002, G028574).)
PETITION FOR RESENTENCING
In February 2023, defendant filed a petition for resentencing pursuant to section 1172.6. He alleged: (1) the information against him allowed the prosecution to proceed under a theory of felony murder, attempted murder under the natural and probable consequences doctrine, or another theory of imputed malice; (2) he was convicted of murder and attempted murder following a trial; and (3) he could not presently be convicted of murder or attempted murder due to changes made to sections 188 and 189. Defendant was appointed counsel.
At a hearing on June 9, 2023, the trial court found defendant had not made a prima facie case and denied his petition for resentencing. As reasons for denying the petition, the court stated: "[I]n looking at the jury instructions and then the verdict forms, I think the Court can make a determination that the defendant would now be convicted [of] murder or attempted murder under the change in law. [¶] First, as to the attempt[ed] murder convictions, he was not convicted under any natural and probable consequences theory, and so since the jury was not instructed on any theory of liability for attempted murder that required the malice to be imputed to him, his petition can be denied....The jury was not given [CALJIC] 3.02, which dealt with natural and probable consequences. [¶] As to the murder convictions, I also find the defendant ineligible because the record of conviction demonstrates that the jury found him guilty of first-degree murder as either the actual killer or an aider/abettor." "[T]he finding of first-degree murder on its own does not preclude getting to an OSC stage. However, the jury was given CALJIC 8.80.1 for the special circumstance, which required that they find that the [defendant] with intent to kill aided and abetted any act or in the commission of a murder in the first degree. [¶] Therefore, it's clear from the record of conviction to this Court that they either found him to be the perpetrator or aided and abetted the perpetrator with the requisite intent and that he was not convicted because of any imputed theory of malice."
The trial court also issued a written statement of decision confirming its findings and decision. The court confirmed its finding that the jury had not been instructed on felony murder, murder under the natural and probable consequences doctrine, or any theory by which malice could be imputed to defendant.
ISSUE SUGGESTED BY COUNSEL
We have examined the entire appellate record and have found no arguable issues on appeal. Defendant's counsel suggests we address the following issue: "Did the trial court prejudicially err by determining that [defendant] was ineligible for relief as a matter of law?" The issue has no merit: The trial court did not err by finding defendant had not made a prima facie case for relief and denying his petition for resentencing. The jury was not instructed on felony murder or murder under a natural and probable consequences theory. "The fact that a petitioner was not 'convicted of felony murder or murder under a natural and probable consequences theory' [citation] at trial may be conclusively determined if, for example, the jury did not receive instructions on either theory." (People v. Rivera (2021) 62 Cal.App.5th 217, 236.)
DISPOSITION
The postjudgment order denying defendant's petition for resentencing is affirmed.
WE CONCUR: O'LEARY, P. J., MOTOIKE, J.