Opinion
A157111
02-28-2020
THE PEOPLE, Plaintiff and Respondent, v. PASTOR MADERO PENA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK CRCR-04-59758)
Defendant Pastor Madero Pena filed a notice of appeal from an order denying his petition under Penal Code section 1170.95. Defendant's appellate counsel has asked this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436 (Wende).)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was notified of his right to file a supplemental brief. In response, defendant requested an extension of time to file his supplemental brief and an order directing appellate counsel to turn over a copy of the record on appeal and to provide defendant with certain work product. We granted the request for an extension of time and ordered counsel to transmit a "copy of the record on appeal and to provide [him with] sufficient work product" to allow him "to understand what legal theories counsel considered and rejected." On our own motion, we extended the time for defendant to file his supplemental brief until January 30, 2020. Defendant has not filed a brief.
Upon our independent review of the record, we find no arguable issues on appeal and direct the trial court to vacate its dismissal order and enter an order dismissing defendant's section 1170.95 petition without prejudice for failure to make a prima facie showing of entitlement to relief.
BACKGROUND
In 2004, defendant was convicted of first degree murder, with true findings that he intentionally discharged a firearm causing the death of the victim within the meaning of sections 12022.5, subdivisions (a) and (b) and 12022.53, subdivision (d). The trial court sentenced him to 25 years to life on the murder count, stayed imposition of sentence on the section 12022.5 enhancements, and entered a consecutive sentence of 25 years to life on the section 12022.53 subdivision (d) enhancement. We affirmed the judgment. (People v. Pena (Oct. 6, 2006, A108000) [nonpub. opn.].)
We grant counsel's request to take judicial notice, pursuant to Evidence Code section 452, subdivision (d), of our prior opinion. --------
On September 30, 2018, the governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January 1, 2019. The bill altered the definitions of malice and first and second degree murder under sections 188 and 189. (Stats. 2018, ch. 1015, §§ 2, 3.) Specifically, these revisions amended "the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Ibid.)
In March 2019, defendant, in propria persona, filed a section 1170.95 petition seeking resentencing on the ground that, in light of the changes to the law effectuated by Senate Bill No. 1437 (2017-2018 Reg. Sess.), he could not now be convicted for first degree felony murder.
That same month, the trial court summarily denied defendant's petition. Relying on the "court file[,] including the complaint, abstract of judgment, jury instructions and opinion from the Court of Appeal," the trial court found no basis for relief as a matter of law. The trial court concluded the evidence reflected petitioner was convicted of first degree murder and that he "was the actual killer and was not convicted under a theory of felony-murder or a theory of natural and probable consequences."
Still proceeding without an attorney, defendant timely appealed.
We need not, and do not decide whether the trial court correctly concluded defendant's section 1170.95 lacked substantive merit. Rather, we need only conclude defendant's petition failed to make out a prima facie case for relief under section 1170.95, as defendant failed to complete either section five or section six of the form he chose to use. Accordingly, his petition should have been summarily dismissed without prejudice.
DISPOSITION
To ensure that the dismissal order has no preclusive effect as to the merits, we direct the trial court to vacate its dismissal order and enter an order dismissing defendant's section 1170.95 petition without prejudice for failure to make a prima facie showing of entitlement to relief.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.