Opinion
E083366
09-19-2024
THE PEOPLE, Plaintiff and Respondent, v. SAUL ANDREWJUAN MORENO, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. (Super.Ct.No. FWV17000443) Jon D. Ferguson, Judge. Appeal dismissed.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Saul Andrewjuan Moreno appeals from an order of the San Bernardino County Superior Court denying his Penal Code section 1172.6 petition for resentencing.
Defendant's petition was filed on a section 1170.95 petition form. Section 1170.95, which became effective January 1, 2019 (Sen. Bill No. 1437, Stats. 2018, ch. 1015, § 4), amended sections 188 and 189 to limit the reach of the felony-murder rule and to eliminate the natural and probable consequences doctrine in cases of first and second degree murder. The statute was amended effective January 1, 2022, to expand the provisions to include attempted murder (Sen. Bill No. 775, Stats 2021, ch. 551, § 2) and was later renumbered as section 1172.6 without change in the text (Assem. Bill No. 200, Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to the provision by its new numbering. All further statutory references are to the Penal Code.
BACKGROUND
In July 2019, defendant entered into a plea of guilty to charges of attempted murder (§§ 187, subd. (a), 664, count 1) and assault with a firearm (§ 245, subd. (a)(2), count 7). He admitted the attempted murder was willful, deliberate, and premeditated, and also admitted a section 186.22, subdivision (b)(1)(c) gang enhancement as to count 1. The parties stipulated the plea had a factual basis and the trial court sentenced defendant to a total indeterminate term of 15 years to life for the attempted murder, with a concurrent determinate mid-term of three years for the assault with a firearm.
In February 2024, the court denied defendant's August 2023 section 1172.6 petition. Defendant timely noticed this appeal and we appointed counsel to represent him.
DISCUSSION
Appointed appellate counsel filed an opening brief that sets forth statements of the case and facts but does not present any issues for adjudication. Counsel cites our opinion in People v. Griffin (2022) 85 Cal.App.5th 329, 335-336 and requests we exercise our discretion under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) to conduct an independent review of the record.
Counsel considered two issues: (i) whether defendant was ineligible for section 1172.6 relief as a matter of law, and (ii) whether the court erred by accepting defendant's admission that the attempted murder was willful, deliberate, and premeditated in view of the absence of that allegation in the charging documents.
We notified defendant that (i) his counsel filed a brief stating no arguable issues could be found, and (ii) this court may, but is not required, to conduct an independent review of the record. (Delgadillo, supra, 14 Cal.5th at p. 216.) We invited defendant to file within 30 days any supplemental brief deemed necessary and cautioned that failure to timely file a supplemental brief might result in the dismissal of his appeal as abandoned. Defendant did not file a brief.
Neither defendant or his counsel have presented an issue and upon our review of the record, we do not find any error. Accordingly, we dismiss defendant's appeal.
DISPOSITION
The appeal is dismissed.
We concur: McKINSTER J. FIELDS J.