Opinion
B314962
08-24-2022
THE PEOPLE, Plaintiff and Respondent, v. JACOB ENCARNACION GARCIA, Defendant and Appellant.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA272443, Kerry Bensinger, Judge. Affirmed.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
STRATTON, P. J.
We review this appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant appeals from an order denying his petition for resentencing pursuant to former Penal Code section 1170.95. Finding no error, we affirm.
All further statutory references are 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.) In this opinion we will use the new code section.
On July 14, 2006, a jury convicted appellant of first degree murder and possession of a firearm by a felon. The jury found true a gang allegation and an allegation that Garcia personally and intentionally discharged a firearm causing the victim's death. On November 9, 2006, the court sentenced appellant to an indeterminate term of 50 years to life. This court affirmed appellant's conviction. According to the appellate decision, Garcia was prosecuted and convicted as the person who shot the victim. (People v. Garcia (Aug. 13, 2008, B195201) [nonpub. opn.].)
On March 29, 2021, appellant filed a petition pursuant to section 1172.6, asking the court to vacate his murder conviction on the ground that he was convicted under the felony murder rule or under the natural and probable consequences doctrine, was not the actual killer, he did not have the intent to kill, and he was not a major participant in the felony and did not act with reckless indifference to human life. The trial court appointed counsel on appellant's behalf.
On August 24, 2021, the trial court denied the petition on the ground that the record of conviction shows appellant was prosecuted as the actual killer and the trial court had not instructed the jury on either the felony murder rule or the natural and probable consequences doctrine. The court reviewed the appellate decision affirming Garcia's conviction and the actual jury instructions given to the trial jury.
Garcia appealed on September 3, 2021 and on November 12, 2021, we appointed counsel on his behalf. On May 9, 2022, counsel filed an opening brief raising no issues and asking this court to review the record independently as required by People v. Wende. Counsel also declared under penalty of perjury that he had written to appellant to explain his evaluation of the record and his intention to file a no merit brief. He informed appellant of his right to file a supplemental brief and sent him copies of the transcripts of the record on appeal and the brief.
On June 7, 2022, we advised appellant he had 30 days within which to personally submit contentions or issues he wants us to consider. No supplemental brief has been filed.
We have fully examined the record and are satisfied appellant's counsel fully complied with his responsibilities and no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra, 25 Cal.3 at p. 441.)
DISPOSITION
The order is affirmed.
We concur: GRIMES, J., WILEY, J.