Opinion
G061923
12-07-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE FRANCISCO DELAPENA, Defendant and Appellant.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County Super. Ct. No. 09NF0973, Jonathan F. Fish, Judge. Affirmed.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
DELANEY, J.
In 2011, Jose Francisco Delapena pled guilty to seven counts, including attempted murder (Pen. Code §§ 187, subd. (a), 664; count 5 (count 5)). In 2022, he filed a petition for resentencing pursuant to former section 1170.95 (now § 1172.6) on four convictions, including the conviction on count 5. The trial court denied the petition only as to count 5, finding Delapena's factual admission he committed the crime with intent to kill precluded him from resentencing relief.
All further statutory references shall be to the Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch.58, §10).
Delapena appealed, and his appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), stating no arguable issues could result in a disposition more favorable to Delapena (Id. at p. 232). Subsequently, this court sent a letter advising Delapena he had 30 days to file any supplemental brief deemed necessary, or the matter may be dismissed as abandoned. He did not file a supplemental brief. Although Delapena did not file a supplemental brief, we exercise our discretion to conduct an independent review of the record and appointed counsel's brief. As discussed below, we find no reasonably arguable issue on appeal, and the issue suggested by counsel has no merit. We therefore affirm.
FACTS
On September 30, 2011, Delapena was charged, via information, with seven counts, including murder, attempted murder, aggravated assault, dissuading a witness by force or threat, and street terrorism. On November 2, 2012, Delapena pled guilty on a standardized plea form, which included the waiver of various constitutional rights set forth in In re Tahl (1969) 1 Cal.3d 122, disapproved on other grounds in Mills v. Municipal Court (1973) 10 Cal.3d 288 (the Tahl waiver). As the factual basis for his plea to count 5, Delapena stated: "I committed an act in an attempt to kill [E.A.], intending to kill him, by personally discharging a firearm." Delapena was sentenced to 35 years, 4 months in state prison.
On April 25, 2022, Delapena filed a petition for resentencing on four counts, including count 5. The petition alleged an information was filed charging him with attempted murder under the natural and probable consequences doctrine, he accepted a plea offer in lieu of a trial at which he could be convicted of attempted murder, and he could not presently be convicted of attempted murder because of changes to sections 188 and 189.
Respondent opposed the resentencing petition, arguing as to count 5 that the factual admissions in the Tahl waiver established Delapena would be convicted of attempted murder under the current law. Specifically, Delapena "admitted personally discharging a firearm when attempting to kill [E.A.]. Thus, by admitting to being the perpetrator and to acting with the required intent to kill, the petitioner would be guilty of . . . attempted murder[ ] under current law."
Delapena argued his guilty plea did not establish he was ineligible for resentencing relief as a matter of law. Citing People v Offley (2020) 48 Cal.App.5th 588 (Offley), he asserted that his admission to personal discharge of a firearm is not a disqualifying factor.
The trial court denied the resentencing petition as to count 5 only. It concluded Offley, supra, 498 Cal.App.5th 588, was distinguishable because Delapena's factual admissions in his plea established a personal intent to kill. Delapena timely appealed.
DISCUSSION
Following Wende/Delgadillo guidelines, we have reviewed counsel's brief and the appellate record. To assist the court in its review, counsel identified one issue for our consideration: Did the trial court err in finding Delapena's statement regarding count 5 in the addendum to the Tahl waiver make him ineligible for relief in light of People v. Offley (2020) 48 Cal.App.5th 588?
Section 1172.6 provides in pertinent part: "person convicted of . . . attempted murder under the natural and probable consequences doctrine . . . may file a petition with the court that sentenced the petitioner to have the petitioner's . . . attempted murder . . . conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A[n] . . . information . . . was filed against the petitioner that allowed the prosecution to proceed under . . . attempted murder under the natural and probable consequences doctrine. [¶] (2) The petitioner . . . accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of . . . attempted murder. [¶] (3) The petitioner could not presently be convicted of . . . attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).) Resentencing relief is "unavailable if the defendant was either the actual killer, acted with the intent to kill, or 'was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2.' (Pen. Code, § 189, subd. (e)(3); see § 1172.6, subd. (a).)" (People v. Strong (2022) 13 Cal.5th 698, 710.)
Here, Delapena admitted he personally discharged a firearm at the victim, "intending to kill him." The admission established Delapena acted with express malice, and thus he could still be convicted of murder under present law. Delapena is ineligible for resentencing relief as a matter of law. (See People v. Fisher (2023) 95 Cal.App.5th 1022, 1030 [affirming trial court's order denying resentencing relief on two murder convictions and one attempted murder conviction because petitioner "did not merely plead guilty to murder and attempted murder: he expressly admitted to shooting and killing two people, and shooting and injuring a third person."]; People v. Coley (2022) 77 Cal.App.5th 539, 545-547 [denying resentencing relief because "[a]n intent to kill is the equivalent of express malice, at least when there is no question of justification or excuse, and by finding appellant guilty of attempted murder, the jury necessarily found he had personally harbored intent to kill or express malice when he aided and abetted the second degree murder."].)
Offley, supra, 48 Cal.App.5th 588, does not assist Delapena. There, the appellate court concluded a firearm enhancement does not preclude resentencing relief because the enhancement "does not require that the defendant acted either with the intent to kill or with conscious disregard to life." (Id. at p. 598, italics added.) Offley is inapplicable because here, Delapena admitted he personally used the firearm with the intent to kill.
Our review of the entire record, including the matters identified by counsel, does not show the existence of an arguable issue. (Wende, supra, 25 Cal.3d at pp. 442443.) Consequently, we affirm the postjudgment order.
DISPOSITION
The trial court's postjudgment order denying resentencing relief as to count 5 is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J. SANCHEZ, J.