Opinion
B324011
10-10-2023
THE PEOPLE, Plaintiff and Respondent, v. RICHARD DE LA CRUZ, Defendant and Appellant.
Larry Pizarro and Richard Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NA059152, James D. Otto, Judge. Affirmed.
Larry Pizarro and Richard Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CURREY, P. J.
In 2004, a jury convicted defendant and appellant Richard De La Cruz of willful, deliberate, and premeditated attempted murder. (Pen Code, §§ 664, 187, subd. (a).) The jury found De La Cruz personally inflicted great bodily injury and used a deadly weapon in the commission of the offense. (§§ 12022, subd. (b)(1), 12022.7, subd. (a).) The trial court sentenced De La Cruz to life plus 11 years.
All undesignated statutory references are to the Penal Code.
The jury also convicted De La Cruz of attempted forcible oral copulation and robbery. It found great bodily injury and weapon use allegations true on those counts.
In 2022, De La Cruz filed a petition for resentencing under section 1172.6 (former section 1170.95). The trial court appointed counsel and ordered briefing. The prosecution filed an opposition noting the jury was not instructed on aiding and abetting or the natural and probable consequences doctrine. Along with its opposition, the prosecution appended the jury instructions from De La Cruz's trial. The trial court denied De La Cruz relief, concluding he was ineligible as a matter of law.
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.)
De La Cruz timely appealed, and we appointed counsel to represent him. On March 30, 2023, appellate counsel filed a brief raising no issues and requesting discretionary independent review of the record under People v. Delgadillo (2022) 14 Cal.5th 216. On April 17, 2023, De La Cruz filed a supplemental brief. In it, he appears to argue he should be granted relief because he believes the victim testified falsely at his original trial. We reject his contention as it has no bearing on whether the trial court's ruling denying him relief was legally correct. As noted above, the prosecution included the jury instructions from De La Cruz's trial along with its opposition. A review of these instructions demonstrates the jury was not instructed on aiding and abetting, the natural and probable consequences doctrine, or any theory of imputed-malice liability. De La Cruz was therefore convicted of attempted murder under current law, and as a result, is ineligible for section 1172.6 relief as a matter of law.
In addition to rejecting the argument De La Cruz raised in his supplemental brief, we have exercised our discretion to independently review the record, and we conclude no arguable issues exist. (See People v. Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The order denying relief is affirmed.
We concur: COLLINS, J., ZUKIN, J.