Opinion
G062236
09-29-2023
THE PEOPLE, Plaintiff and Respondent, v. DAVID MARIANO ROBLES, Defendant and Appellant.
Laura Arnold, 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NOT TO BE PUBLISHED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, Super. Ct. No. 17NF2236 Kimberly Menninger, Judge. Affirmed.
Laura Arnold, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
Defendant David Mariano Robles filed a petition for resentencing pursuant to Penal Code section 1172.6. At the prima facie hearing on the petition, the trial court denied Robles resentencing relief. Appointed counsel for Robles filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), setting forth the facts of the case. Citing Delgadillo, counsel asked this court to conduct an independent review of the entire record. Robles was given an opportunity to file a supplemental brief but did not do so. Under Delgadillo, we exercise our discretion to independently review the record.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) Although Robles filed his petition after this renumbering, his petition references the former section 1170.95. We will treat the petition as a request pursuant to section 1172.6. All further statutory references are to the Penal Code.
We have examined the entire record and we find no reasonably arguable issue. (Delgadillo, supra, 14 Cal.5th at p. 232.) We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2019, Robles pleaded guilty to attempted murder (§§ 664, subd. (a), 187, subd. (a); count 1), carrying a loaded firearm in public while an active member of a criminal street gang (§ 25850, subds. (a) and (c)(3); count 2), and street terrorism (§ 186.22, subd. (a); count 3). Robles also admitted counts 1 and 2 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court imposed a total prison sentence of 19 years 8 months.
In October 2022, Robles filed a petition for resentencing on count 1 pursuant to section 1172.6 and counsel was appointed for him. The People filed a response to the resentencing petition, arguing it should be denied. At the prima facie hearing on the petition, the trial court reviewed the petition, the People's response, as well as the record of conviction, and found Robles had failed to establish a prima facie showing for relief. Robles appealed.
DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) 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.'" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Senate Bill 1437 also created procedures "for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (Lewis, at p. 957.) A subsequent amendment to former section 1170.95 extended relief to defendants convicted of attempted murder based on the natural and probable consequences doctrine or manslaughter. (Sen. Bill No. 775 (2021-2022 Reg. Sess.) §1; Stats. 2021, ch. 551 (Senate Bill 775).)
After receipt of a section 1172.6 resentencing petition, counsel shall be appointed upon petitioner's request. (§ 1172.6, subds. (b)(1)-(3).) The prosecutor must then file a response to the petition, and a reply may be filed by the petitioner. (§ 1172.6, subd. (c).) The trial court shall then "hold a hearing to determine whether the petitioner has made a prima facie case for relief." (Ibid.)
At the prima facie hearing, the trial court may rely on the record of conviction. (Lewis, supra, 11 Cal.5th at pp. 970-971.) The record of conviction may include the change of plea form, abstract of judgment, and charging document. (People v. Self (2012) 204 Cal.App.4th 1054, 1059.) "The record of conviction will necessarily inform the trial court's prima facie inquiry under [former] section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, at p. 971.) When considering a plea, "a petitioner convicted of murder is ineligible for resentencing if the record establishes, as a matter of law, that (1) the complaint, information, or indictment did not allow the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or another theory of imputed malice; (2) the petitioner was not convicted under such theory; or (3) the petitioner could presently be convicted of murder or attempted murder under the law as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.)." (People v. Flores (2022) 76 Cal.App.5th 974, 987.)
In finding Robles ineligible for resentencing relief, the trial court noted the factual basis Robles confirmed as true at the time of his plea. In the guilty plea form, which was initialed and signed by Robles under penalty of perjury, he admitted the following: "I knowingly, willfully, and unlawfully . . . with the specific intent to kill attempted to murder John Doe, a human being . . . ." Based on the record of conviction, Robles admitted facts necessary to sustain his attempted murder conviction under the law as amended by Senate Bills 1437 and 775.
After independently reviewing the entire appellate record, we find no arguable issue.
DISPOSITION
The postjudgment order denying the resentencing petition is affirmed.
WE CONCUR: O'LEARY, P.J. GOETHALS, J.