Opinion
D080412
10-13-2022
THE PEOPLE, Plaintiff and Respondent, v. EMILIO PELAYO SALDANA, Defendant and Appellant.
Emilio Saldana, in pro. per.; and Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Bernardino County, Super. Ct. No. FWV1102225 Ingrid A. Uhler, Judge. Affirmed.
Emilio Saldana, in pro. per.; and Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
HUFFMAN, J.
This an appeal from the summary denial of appellant's second petition for resentencing filed under Penal Code former section 1170.95.
All further statutory references are to the Penal Code.
Former section 1170.95 was renumbered as section 1172.6 without substantive change on June 30, 2022. (See Stats. 2022, ch. 58 (Assem. Bill No. 200) § 10, eff. June 30, 2022.) As such, we refer to the subject statute by its current number throughout this opinion.
In May 2015, a jury convicted Emilio Pelayo Saldana of first degree murder (§ 187, subd. (a)) and found true an allegation that a principal was armed with a firearm during the offense (§ 12022, subd. (a)(1)). Saldana was sentenced to an indeterminate term of 51 years to life in prison.
In 2019, Saldana filed his first petition for resentencing under section 1172.6. The court found the jury had not been instructed on felony murder or natural and probable consequences theories of liability and denied the petition.
In 2022, Saldana filed the current petition for resentencing under section 1172.6. The court appointed counsel and ultimately denied the petition. The court again found the jury was not instructed on felony murder or natural and probable consequences and that Saldana was tried as a direct aider and abettor.
Saldana filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Saldana the opportunity to file his own brief on appeal. He has responded by filing a supplemental brief, which we will discuss below.
The facts of the offense were thoroughly discussed in our prior opinion. We will not repeat them here. (People v. Olvera et al. (Dec. 18, 2017, D072618) [nonpub. opn.].)
As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review of the record, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified a possible issue that was considered in evaluating the potential merits of this appeal: Whether the court erred in denying Saldana's petition for resentencing, finding the petition did not state a prima facie case for relief.
In his supplemental brief, Saldana argues counsel provided ineffective assistance. He recognizes no instructions were given to the jury on felony murder or liability based on the doctrine of natural consequences. Instead, he relies on the instructions given on liability based on an unpled theory of liability based on participating in a conspiracy to commit murder. Saldana claims the conspiracy instruction has the same legal effect as instructions on natural and probable consequences. Saldana's submission does not raise any arguable issues for reversal on appeal.
We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Saldana on this appeal.
DISPOSITION
The order denying Saldana's petition for resentencing under section 1172.6 is affirmed.
WE CONCUR: McCONNELL, P. J. O'ROURKE, J.