Opinion
C089681
03-06-2020
THE PEOPLE, Plaintiff and Respondent, v. LUISALBERTO DEL HORNO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 02F02916)
Appointed counsel for defendant, Luisalberto Del Horno, asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the trial court's order.
This appeal arises from the trial court's denial of defendant's petition for resentencing as will be discussed herein. To facilitate our review, we incorporate the facts and proceedings from our unpublished opinion, People v. Delhorno (Aug. 25, 2005, C046032) (Delhorno), in defendant's previous appeal from his underlying conviction. "Shortly after 1:00 p.m. on March 20, 2002, the victim, Lowell Tetrick, was riding his motorcycle southbound on Whitsett Drive in Sacramento when he encountered defendant driving his pickup truck in the opposite direction. Defendant had just turned onto Whitsett and was in the victim's lane of traffic approximately 104 feet away. Defendant and the victim applied their brakes, and the victim lost control of the motorcycle. It flipped over and slid on its side toward the truck. The victim was separated from the motorcycle and he too slid toward the truck. By the time the motorcycle and the truck reached each other, they had nearly come to a stop. The victim came to rest just under the front of the truck, wedged between the truck and the motorcycle.
This opinion is part of defendant's record of conviction and was properly considered by the trial court. (See People v. Verdugo (2020) 44 Cal.App.5th 320, 333, citing People v. Woodell (1998) 17 Cal.4th 448, 456.)
"After a second or two, defendant started to drive the truck forward slowly. The motorcycle, which was in front of the right side of the truck, was pushed out of the way. However, the victim remained under the truck and was dragged along as the truck increased speed. The victim was dragged for 243 feet before disengaging from behind the truck. His helmet was scraped and gouged and was eventually pulled off of his head. Defendant sped away from the scene.
"The victim suffered massive injuries, especially to his right side. A skid mark of flesh and blood was found on the road between where the motorcycle and the victim came to rest. The victim had a large scrape from his back over both hips and an abrasion over his right shoulder blade. He had a large scrape over his left chest and hip. Muscle had been torn away in the armpit area of his right side, and there was asphalt imbedded in this injury. He had injuries to the back of his right arm and his legs, but the most severe injuries were to his head. The right side of his face had been ground away, his right eyeball was gone, the bone of his skull had been ground down and the gray matter of his brain was exposed. There were also injuries to the victim's ribs, spleen, sacroiliac joint, and pubic bone.
"A nearby resident called 911 at 1:29 p.m. and police and fire department personnel arrived soon thereafter. The victim was taken away, but his heart stopped before he reached the hospital. The victim was pronounced dead at 1:52 p.m.
"When defendant arrived home, he appeared shaken and scared and told his girlfriend he had hit something or somebody. Defendant told her the victim was under his truck and that he dragged him. Defendant covered the back of his truck with a tarp. The truck was later moved to the home of a friend. Defendant asked if he could leave it there because he was in trouble with the law and wanted to go to Mexico. Later, an anonymous caller reported where the truck could be found and the identity of its owner. The authorities found the truck and defendant was arrested." (Delhorno, supra, C046032.)
The People's amended information charged defendant with murder with malice aforethought (Pen. Code, § 187, subd. (a); count one); vehicular manslaughter (§ 192, subd. (c)(1); count two); fleeing the scene of an accident (Veh. Code, § 20001, subd. (a); count three); and driving without a valid license (Veh. Code, § 12500, subd. (a); count four). Defendant pleaded no contest to the Vehicle Code violations, and the jury found him guilty of the two remaining counts. Defendant was sentenced on the murder count to an indeterminate term of 15 years to life. His sentence on the vehicular manslaughter and leaving the scene charges was stayed pursuant to section 654, and defendant was given time served on the charge of driving without a license. (Delhorno, supra, C046032.)
Undesignated statutory references are to the Penal Code.
We granted defendant's request for judicial notice of his record in case No. C046032 (Docket No. 150) and have reviewed this record as needed to determine defendant's arguments. --------
As noted earlier, defendant appealed this judgment arguing evidentiary and instructional errors, as well as complaining about limitations applied to defendant's closing argument. Finding no prejudicial errors, we affirmed defendant's convictions, but determined that count three should not have been stayed pursuant to section 654 and remanded for resentencing on that count. (Delhorno, supra, C046032.)
Thereafter, on January 28, 2019, defendant filed a form postjudgment petition for resentencing in pro per, asking the trial court for resentencing under newly enacted section 1170.95. (Senate Bill No. 1437 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1015, § 4.) The trial court found defendant ineligible for resentencing because the jury was not instructed on either a felony murder or the natural and probable consequences theory, and the trial court's review of the facts from this court's previous unpublished opinion established that there was no evidence presented at trial that would have supported such instructions. Rather, the theory utilized and the evidence presented at trial were for second degree malice murder. Defendant timely appealed.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the relevant procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief and has filed a supplemental brief, which we understand to challenge the propriety of various aspects of his second degree murder conviction, as well as challenging the trial court's compliance with due process in denying his petition for resentencing without appointment of counsel and further proceedings.
Whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an order denying a petition brought pursuant to section 1170.95 remains an open question. Our Supreme Court has not spoken. The Anders/Wende procedures address appointed counsel's representation of an indigent criminal defendant in the first appeal as a matter of right and courts have been loath to expand their application to other proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551 ; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th 952; People v. Dobson (2008) 161 Cal.App.4th 1422; People v. Taylor (2008) 160 Cal.App.4th 304; People v. Thurman (2007) 157 Cal.App.4th 36; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.) Nonetheless, in the absence of our Supreme Court's authority to the contrary, we believe it prudent to adhere to Wende in the present case, where counsel has already undertaken to comply with Wende requirements.
Having examined the record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. Section 1170.95, subdivision (a) provides: "A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019."
Here, the amended information did not charge defendant with murder under either felony murder or as an aider and abettor under a natural and probable consequences theory. This renders defendant ineligible for relief because he fails to satisfy the requirements of section 1170.95, subdivision (a)(1) as a matter of law. Moreover, because of this, the trial court did not violate defendant's right to due process by denying his petition for resentencing prior to the appointment of counsel. (See People v. Verdugo, supra, 44 Cal.App.5th at pp. 324, 332-333 [trial court may make initial prima facie review of eligibility for relief without first appointing counsel].) Defendant's arguments related to the propriety of his conviction for second degree murder on a malice theory are inapposite to the court's determination of his ineligibility for relief under section 1170.95 and are thus not further analyzed here.
We therefore affirm the trial court's order denying defendant's petition for resentencing.
DISPOSITION
The order is affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
HULL, J. /s/_________
HOCH, J.