Opinion
B304483
10-20-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN CABRERA, Defendant and Appellant.
Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. GA094259) APPEAL from a judgment of the Superior Court for Los Angeles County, Drew E. Edwards, Judge. Affirmed. Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant Kevin Cabrera appeals from an order denying his petition for resentencing under Penal Code section 1170.95. His appointed counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436; Cabrera subsequently filed a supplemental brief. To the extent we can decipher Cabrera's arguments, none has merit. We have reviewed the record of the proceedings at issue and affirm the judgment.
Further undesignated statutory references are to the Penal Code.
BACKGROUND
A jury found Cabrera, along with two codefendants, guilty of (among other charges) first degree murder (§ 187, subd. (a)), and found true a special circumstance (robbery-murder) allegation under section 190.2, subdivision (a)(17). The jury also found true that a principal personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (d) and (e)(1)), and that the murder and other offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). (People v. Parra, et al. (Feb. 24, 2017, B263792) [unpub. opn.] (Parra), at p. 2.) The trial court sentenced Cabrera (and his codefendants) to life without the possibility of parole for the special circumstances murder, plus a consecutive term of 25 years to life for the firearm enhancement, and imposed a minimum parole eligibility date of 15 years under section 186.22, subdivision (b)(1)(C). (Parra, supra, B263792, at pp. 2-3.)
Defendant's conviction on these other charges is irrelevant to his petition for resentencing, and therefore we need not discuss them. --------
Cabrera and his codefendants appealed from the judgment. One of the contentions all defendants made was that "the evidence was insufficient to support the robbery-murder special circumstance [finding by the jury] because it failed to prove that they acted with reckless indifference to human life in aiding and abetting the attempted robbery of [the murder victim]." (Parra, supra, B263792, at p. 3.) We found substantial evidence supported the jury's finding that all of the defendants, including Cabrera, acted with reckless indifference to human life. (Parra, supra, B263792, at p. 25.) We also specifically found that Cabrera was a major participant in the attempted robbery of the murder victim. (Parra, supra, B263792, at p. 31.)
In April 2019, Cabrera filed a petition for resentencing under section 1170.95. After reviewing Cabrera's petition, the trial court appointed counsel to represent him on the petition. The Los Angeles District Attorney filed an opposition to the petition, challenging the constitutionality of section 1170.95, as well as a supplemental opposition on the merits. Cabrera, represented by counsel, filed replies to the oppositions. The trial court issued an order to show cause why Cabrera's section 1170.95 petition should not be granted. At the hearing on the order to show cause, the District Attorney requested that the trial court take judicial notice of our opinion in Parra, supra, B263792. Following a hearing held in accordance with section 1170.95, the trial court denied Cabrera's petition, finding that Cabrera was not entitled to resentencing because he was a major participant in the murder at issue, and acted with reckless indifference to human life.
Cabrera timely filed a notice of appeal from the denial of his petition.
DISCUSSION
Cabrera's appointed counsel on appeal filed an opening brief under People v. Wende, supra, 25 Cal.3d 436, asking this court to review the record to determine whether any arguable issues exist. We notified defendant that he had 30 days to file a supplemental brief raising any contentions or arguments he wished this court to consider. Cabrera has filed a supplemental brief, but to the extent his arguments can be ascertained, they are not cognizable in this appeal or fail to demonstrate error or an abuse of discretion by the trial court.
We have examined the entire record and are satisfied that no arguable issues exist and that defendant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment. (Smith v. Robbins (2000) 528 U.S. 259, 278.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.