Opinion
G058311
09-19-2024
THE PEOPLE, Plaintiff and Respondent, v. MARCOS JAVIER CARDENAS, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorneys General, Annie Featherman Fraser, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 07CF2192, Kimberly Menninger, Judge.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorneys General, Annie Featherman Fraser, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
We appointed counsel to represent Marcos Javier Cardenas on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on Cardenas's behalf.
Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436. The court in Wende explained that a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. (Id. at p. 48.) Under these circumstances, the court must conduct an independent review of the entire record. (Ibid.) When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.)
Pursuant to Anders v. California (1967) 386 U.S. 738, to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. (Id. at p. 744.) Counsel raised one issue: Did the trial court err by failing to appoint counsel to represent Cardenas pursuant to Penal Code section 1172.6, subdivision (c)? We gave Cardenas 30 days to file written argument on his own behalf. Thirty days passed, and Cardenas did not file any written argument.
Effective June 30, 2022, the Legislature renumbered Penal Code section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) For purposes of clarity, we refer to the statute as section 1172.6 throughout the opinion. All further statutory references are to the Penal Code, unless otherwise indicated.
Upon our independent review of the record as required by Wende and at counsel's suggestion pursuant to Anders, we identified an issue which, if resolved favorably to Cardenas, could result in reversal of the judgment. We invited the parties to file supplemental letter briefs addressing the question of whether, under the facts of this case, the trial court erred by failing to appoint counsel after Cardenas requested the court appoint counsel for him during the resentencing process.
After the parties filed supplemental briefing, we affirmed the judgment. (People v. Cardenas (Aug. 28, 2020, G058311) [nonpub. opn.].) Based on the record of conviction, we determined Cardenas was ineligible for relief because he was not convicted of first degree murder under the felonymurder theory and thus was not entitled to appointment of counsel.
Our Supreme Court granted review. (People v. Cardenas, supra, G058311, review granted Nov. 10, 2020, S264713.) After the Supreme Court filed its opinions in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), and People v. Curiel (2023) 15 Cal.5th 433 (Curiel), the Supreme Court transferred the matter back to this court to reconsider our decision in light of those opinions. Cardenas did not file a supplemental brief; the Attorney General did.
Also during this time, our Supreme Court filed its opinion in People v. Delgadillo (2022) 14 Cal.5th 216. In that case, the court held the procedures in Wende and Anders do not apply to appeals from the denial of postconviction relief under Penal Code section 1172.6. The court instructed that on appeal from an order denying section 1172.6 relief, a counsel who finds no arguable issue should file a brief informing the appellate court of that determination and include a concise factual recitation. (Id. at p. 231.) The appellate court shall send a copy of the brief to the defendant informing the defendant of the right to file a supplemental brief and that if one is not filed within 30 days, the court may dismiss the matter. (Id. at pp. 231-232.) If a supplemental brief is filed, we must evaluate the contentions in it. (Id. at p. 232.) If a supplemental brief is not filed, we may dismiss the appeal as abandoned without a written opinion. (Ibid.) However, we retain discretion to independently review the record. (Ibid.) Because Delgadillo was decided after the Wende brief in this case was filed, we exercise our discretion to independently review the record.
We have independently reviewed the record in accordance with our obligations under Anders and Kelly. We found no arguable issues on appeal. We find there was no reversible error and affirm the postjudgment order.
FACTS
In 2008, an information charged Cardenas, and codefendants Joseph Anthony Oceguera and Santos J. Gomez, with the murder of Rogelio Briseno Borjas (§ 187, subd. (a); count 1) with special circumstances of felony murder/robbery (§ 190.2, subd. (a)(17)(A)), and murder committed to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)), and street terrorism (§ 186.22, subd. (a); count 2). As to count 1, the information alleged that in the commission of the murder, a principal intentionally discharged a firearm causing death (§ 12022.53, subd. (d), (e)(1)), and the offense was committed for the benefit of a criminal street gang.
One summer afternoon in 2007, Borjas was watching a movie with his wife and son when an intruder entered the home and fired a shot into the ceiling. Borjas's wife quickly grabbed their son and ran out of the house. Once she made sure their son was safely outside, she went back inside the house. From behind a wall, she watched her husband wrestle with the intruder. The family dog bit the man in the leg, and Borjas managed to knock the assailant's gun to the ground. However, Borjas tripped over a rug and fell to the floor. His wife saw the hand, arm, and gun of a second intruder come around the front door and fire several shots. The first intruder retrieved his gun and shot Borjas several times before both assailants fled the scene. Borjas died as a result of multiple gunshot wounds. Gomez was arrested within days of the murder. Gomez said he had been an involuntary wheelman in the crime and identified Cardenas and Oceguera as the shooters. Two weeks later, Borja's wife identified Cardenas as the first intruder and the person who shot her husband.
At trial, under a grant of immunity, Gomez testified that about 10 minutes after he dropped Cardenas and Oceguera off at the victim's residence, he saw Cardenas draw his gun and push his way into the victim's home. Gomez then heard several gunshots before the two men ran back to the car. As the car sped off, Gomez noticed blood on Cardenas' shirt, pants, and shoes. Cardenas told Gomez that a dog bit him.
The trial court instructed the jury it could find Cardenas guilty of first degree murder with malice aforethought and under the theory of felony murder. The jury found Cardenas guilty of first degree murder and found true the gang special circumstance allegation and the firearm allegation. But the jury found the felony-murder special circumstance not true.
In August 2019, Cardenas filed his section 1172.6 petition. The petition included a request that the trial court appoint counsel for Cardenas. On the same day the petition was filed, the court, in chambers, with no party present and without appointing counsel for Cardenas, denied the petition on the ground that Cardenas "d[id] not stand convicted of murder or defendant's murder conviction(s) [were] not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors." Cardenas filed a timely notice of appeal.
As we explain above, we rejected his claim, and the Supreme Court granted a petition for review and eventually transferred the matter back to this court to reconsider our decision in light of Lewis, supra, 11 Cal.5th 952, and Curiel, supra, 15 Cal.5th 433, which we now do.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, §§ 2-3) (SB 1437) amended sections 188 and 189, effective January 1, 2019, to eliminate natural and probable consequences liability for murder, and to limit the scope of the felony-murder rule. (Lewis, supra, 11 Cal.5th at pp. 957, 959.) Under sections 188 and 189, as amended, murder liability can no longer be imposed on a person who was not the actual killer, who did not act with the intent to kill, or who was not a major participant in the underlying felony who acted with reckless indifference to human life. (Lewis, supra, 11 Cal.5th at p. 959.) SB 1437 also added section 1172.6 which, as originally enacted, set forth a procedure whereby a "person convicted of felony murder or murder under a natural and probable consequences theory" could petition for resentencing relief. (Former § 1172.6, subd. (a); Stats. 2018, ch. 1015, § 4.)
A section 1172.6 petition is required to include: "(A) A declaration by the petitioner that the petitioner is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner's conviction. [And] [¶] (C) [w]hether the petitioner requests the appointment of counsel." (Id., subd. (b)(1).) The statute requires the trial court appoint counsel upon the filing of a facially sufficient petition. (Lewis, supra, 11 Cal.5th at p. 970.) "[T]hen the court proceeds to [section 1172.6,] subdivision (c) to assess whether the petitioner has made 'a prima facie showing' for relief. [Citation.]" (Id. at p. 960.)
Although the trial court may not engage in judicial factfinding or make credibility decisions prior to issuing an order to show cause, under Lewis, supra, 11 Cal.5th at page 971, "[t]he record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." The Lewis court also held a trial court's failure to appoint counsel to represent a petitioner when assessing whether he has made a prima facie showing of entitlement to relief is state law error reviewable for prejudice under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818. (Lewis, supra, 11 Cal.5th at pp. 957-958, 973974.) Specifically, "a petitioner 'whose petition is denied before an order to show cause issues has the burden of showing "it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing."' [Citation.]" (Id. at p. 974.)
Here, the record of conviction establishes Cardenas's petition for resentencing was clearly meritless and thus he was not entitled to appointment of counsel. Cardenas was not entitled to SB 1437 relief because he was not convicted under a felony-murder theory as indicated in the verdict forms. The jury found the felony-murder special circumstance not true. On this record, it is not reasonably probable that if Cardenas had been afforded assistance of counsel, his petition would not have been summarily denied without an evidentiary hearing. There was no reversible error. We have reviewed the record pursuant and found no arguable issues on appeal.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: MOORE, J. MOTOIKE, J.