Opinion
B320504
05-01-2023
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO FERNANDO CABALLERO, Defendant and Appellant.
Kevin D. Sheehy, 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NOT TO BE PUBLISHED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. GA048471 Ronald S. Coen. Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CURREY, Acting P.J.
In 2002, a jury convicted defendant and appellant Alejandro Fernando Caballero of two counts of attempted premeditated murder. (Pen. Code, §§ 664, 187, subd. (a); counts one and two.) With respect to each attempted murder, the jury found various gun use, great bodily injury, and gang allegations true. (§§ 12022.53, subds. (b), (c), (d) &(e)(1); 186.22, subd. (b)(1).) The trial court sentenced Caballero to a life term on count 1, enhanced by 25 years (§ 12022.53, subds. (d) &(e)(1)), plus a consecutive life term on count 2, enhanced by 20 years (§ 12022.53, subds. (c) &(e)(1)). The trial court did not instruct the jury that it could convict Caballero of attempted murder under the natural and probable consequences doctrine. In 2004, this court affirmed the judgment in case number B164277.
All undesignated statutory references are to the Penal Code.
Though not directly relevant to this appeal, the jury also convicted Caballero of two counts of assault with a firearm (§ 245, subd. (a)(2)) and two counts of shooting from a motor vehicle (former § 12034, subd. (c)), along with true gang allegation findings on all four counts. (§ 186.22, subd. (b)(1).) The trial court imposed then stayed sentencing on those counts under section 654.
In 2022, Caballero filed a petition for resentencing under section 1172.6 (former section 1170.95). The trial court appointed counsel for Caballero and set a briefing schedule. The prosecution filed a response arguing Caballero was ineligible for relief as a matter of law because the jury was not instructed on the natural and probable consequences doctrine. Along with its response, the prosecution attached the jury instructions from Caballero's trial. Defense counsel informed the court that he would not file a reply, and the court scheduled a hearing to determine whether Caballero had made a prima facie showing of entitlement to relief.
Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. For the sake of simplicity, we will refer to the statute by its new code section. That section provides relief for certain individuals convicted of attempted murder under the natural and probable consequences doctrine. (See § 1172.6.)
At the hearing, the trial court denied relief, concluding Caballero was ineligible as a matter of law because the jury was never "instructed on [the] natural and probable consequences [doctrine] or any other theory of imputed liability."
Caballero timely appealed, and we appointed counsel to represent him. On September 26, 2022, appellate counsel filed a brief raising no issues and asking us to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) Caballero did not respond to the letter advising him of his right to file supplemental briefing.
Because Caballero's appeal is from an order denying section 1172.6 postconviction relief, this court has no duty to independently review the record for reasonably arguable issues. (People v. Delgadillo (2022) 14 Cal.5th 216, 221-222.) We exercise our discretion, however, to review the record for potential issues. (See id. at p. 232.) We conclude there are none. As the trial court correctly noted, the record demonstrates the jury was never instructed on the natural and probable consequences doctrine. Caballero is therefore ineligible for relief as a matter of law.
DISPOSITION
The order denying Caballero section 1172.6 relief is affirmed.
We concur: COLLINS, J. STONE, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6, of the California Constitution.