Opinion
G059727
06-01-2021
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO PINA, Defendant and Appellant.
Victoria H. Stafford, 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NOT TO BE PUBLISHED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, No. 97CF0958 Elizabeth G. Macias, Judge. Affirmed.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
FYBEL, ACTING P. J.
Introduction
A jury convicted defendant Francisco Pina of murder. The trial court sentenced him to life in prison without the possibility of parole. Defendant appealed and this court affirmed.
Following the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.), defendant petitioned for resentencing pursuant to Penal Code section 1170.95. (All further statutory references are to the Penal Code.) The trial court summarily denied defendant's petition; defendant appealed. Appointed counsel found no arguable issues to raise on appeal and filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) asking this court to independently review the record. Counsel's brief did not identify any issues to assist us in our independent review. (Anders v. California (1967) 386 U.S. 738 (Anders).) We provided defendant an opportunity to file a supplemental brief; the time for filing such a brief has passed.
“[W]hen an appointed counsel files a Wende brief in an appeal from a summary denial of a section 1170.95 petition, a Court of Appeal is not required to independently review the entire record, but the court can and should do so in the interests of justice.” (People v. Flores (2020) 54 Cal.App.5th 266, 269.)
We have examined the entire record and appointed counsel's Wende brief. We find no reasonably arguable issue and therefore affirm. (Wende, supra, 25 Cal.3d 436.)
Background
On July 27, 1995, police found Edward Tobin lying facedown with a fatal gunshot wound to the back of his head. Tobin was defendant's stepfather. Defendant's daughter told the police she had received a telephone call from defendant; defendant had admitted to his daughter that he killed Tobin by shooting him in the back of the head and took items from Tobin, including a safe deposit box key.
Defendant was later arrested at his home in Phoenix, Arizona. Tobin's vehicle was in defendant's possession; a.22 caliber rifle, a safe deposit box key, paperwork, and jewelry were found inside the vehicle. During questioning, defendant admitted killing Tobin by shooting him in the back of the head with a.22 caliber rifle he had found in Tobin's home. Defendant became angry after Tobin insulted him, used racial epithets, was abusive to him, and slapped him in the face. He also felt Tobin had been abusive to defendant's mother, who had died in 1973. At trial, defendant admitted killing Tobin but claimed he was only guilty of manslaughter.
In an information, defendant was charged with murder (§ 187, subd. (a)), with a special circumstance allegation that he committed the crime while engaged in the commission of a robbery (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)), and with a sentencing enhancement allegation that he personally used a firearm in the commission of the crime (§ 12022.5, subd. (a)). A jury found defendant guilty and found all allegations to be true. The trial court sentenced defendant to a term of life without the possibility of parole. This court affirmed the judgment. (People v. Pina (Feb. 24, 1999, G022389) [nonpub. opn.].)
On October 3, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. The trial court summarily denied the petition on the ground that defendant was ineligible for relief under section 1170.95 because he was the actual killer. Defendant filed a timely notice of appeal from the postjudgment order.
Analysis
In People v. Gentile (2020) 10 Cal.5th 830 (Gentile), the California Supreme Court explained:
“Senate Bill 1437 ‘amend[ed] 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.' [Citation.]
“To further that purpose, Senate Bill 1437 added three separate provisions to the Penal Code. First, to amend the felony-murder rule, Senate Bill 1437 added section 189, subdivision (e): ‘A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.'...
“Second, to amend the natural and probable consequences doctrine, Senate Bill 1437 added section 188, subdivision (a)(3) (section 188(a)(3)): ‘Except [for felony-murder liability] as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.'
“Third, Senate Bill 1437 added section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief under the two ameliorative provisions above.” (Gentile, supra, 10 Cal.5th at pp. 842-843, italics added.)
Under section 1170.95, subdivision (c), the trial court performs an initial prima facie review of information in the record of conviction and the court file to determine whether a petitioning defendant is eligible for relief as a matter of law. (People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, review granted Mar. 18, 2020, S260493.) The trial court may review the complaint, the information or indictment, the verdict form or the documentation for a negotiated plea, the abstract of judgment, and the opinion from any direct appeal. (Id. at pp. 330, 333.) If the review of these documents demonstrates the defendant is not eligible for relief, the trial court may summarily deny the petition. (Id. at p. 330.)
In this case, defendant was the actual killer. Defendant was not prosecuted under the felony murder or natural and probable consequences doctrines, and the jury was not instructed on either of these theories. Defendant testified on his own behalf at trial, and admitted he shot Tobin in the back of the head. Therefore, he is not eligible for the relief provided by section 1170.95. The trial court did not err by summarily denying his section 1170.95 petition.
We have reviewed the record in accordance with Wende and Anders, and we find no arguable issues on appeal. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.)
Disposition
The postjudgment order is affirmed.
WE CONCUR: THOMPSON, J.GOETHALS, J.