Opinion
F086588
05-01-2024
THE PEOPLE, Plaintiff and Respondent, v. JAIRO MANCILLA, Defendant and Appellant.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, and William K. Kim, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F17902461 Houry A. Sanderson, Judge.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, and William K. Kim, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
Petitioner Jairo Mancilla petitioned the trial court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on his two convictions for first degree murder. The trial court denied the petition at the prima facie stage without an evidentiary hearing.
Undesignated statutory references are to the Penal Code. Former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We refer to the current section 1172.6 in this opinion.
Appellate counsel filed a brief which summarized the facts and procedural history with citations to the record. Counsel raised no issues but asked this court to independently review the record pursuant to People v. Delgadillo (2022) 14 Cal.5th 216. Petitioner was advised of his right to file a supplemental brief within 30 days of the date of the filing of counsel's Delgadillo brief. Petitioner filed no response and the time for doing so has passed.
During the pendency of this appeal, this court reversed petitioner's convictions on his direct appeal. (People v. Mancilla (Dec. 29, 2023, F082925) [nonpub. opn.] (Mancilla).) We therefore requested supplemental briefing on whether the instant appeal should be dismissed as moot. Petitioner did not file a supplemental brief. The People agree the appeal is moot and should be dismissed.
We conclude the appeal is moot and must be dismissed.
BACKGROUND
On February 19, 2021, petitioner was convicted of two counts of first degree murder (§ 187, subd. (a)). The jury found true gang and firearm enhancements (§§ 186.22, subd. (b)(1), 12022.53, subd. (d)), and a multiple murder special circumstance (§ 190.2, subd. (a)(3)). Petitioner was sentenced to two consecutive terms of life without the possibility of parole.
On August 25, 2022, petitioner filed a petition for resentencing pursuant to section 1172.6. Counsel was appointed, and further briefing was filed.
The matter was heard on July 13, 2023. The court stated its own recollection, as the judge who presided over the trial, that the trial evidence suggested petitioner was "the primary culpable party." Setting aside its own recollection of the case, the court noted the jury instructions and evidence suggested only that petitioner was the direct perpetrator, and the prosecutor had not relied on an aiding and abetting or natural and probable consequences theory. Accordingly, the petition was denied.
On December 29, 2023, this court issued its opinion in petitioner's direct appeal. (Mancilla, supra, F082925.) We reversed the judgment in its entirety and remanded for further proceedings. (Ibid.) The remittitur issued on February 28, 2024.
DISCUSSION
"' "[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [opposing party], an event occurs which renders it impossible for this court, if it should decide the case in favor of [defendant], to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal"' as moot." (People v. DeLeon (2017) 3 Cal.5th 640, 645; accord, In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.)
Relevant here, section 1172.6 provides a procedure for persons convicted of "felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime" to seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a).) Here, however, petitioner's judgment was reversed in its entirety in petitioner's direct appeal. (Mancilla, supra, F082925.) Thus, even if we were to find the court erred in denying the petition for resentencing, no effective relief would be available to petitioner in the instant appeal. "When no effective relief can be granted, an appeal is moot and will be dismissed." (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315.)
Accordingly, the appeal is moot and must be dismissed.
DISPOSITION
The appeal is dismissed as moot.
[*] Before Levy, Acting P. J., Poochigian, J. and Detjen, J.