Opinion
D078883
11-09-2021
THE PEOPLE, Plaintiff and Respondent, v. ABEL JOSUE SALOME, Defendant and Appellant.
Randall Conner, 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NOT TO BE PUBLISHED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 Riverside County No. INF 1600779, John D. Molloy, Judge. Affirmed.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
HUFFMAN, Acting P. J.
In 2017, a jury convicted Abel Josue Salome of first degree murder (Pen. Code, § 187, subd. (a)) and found that a principal was armed with a firearm (§ 12022, subd. (a)(1)). Salome was sentenced to a determinate term of one year plus an indeterminate term of 25 years to life in prison. Salome appealed and this court affirmed the judgment in an unpublished opinion, People v. Salome, DO74447 (Dec. 26, 2018).
All further statutory references are to the Penal Code.
On our own motion, we take judicial notice of our records in case No. DO74447.
In December 2018, Salome filed a petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, issued an order to show cause, and held a contested evidentiary hearing. At the hearing, the parties agreed Salome was prosecuted as a direct aider and abettor who acted with malice and the intention to kill. The court noted the jury was not instructed on the felony murder rule or the natural and probable consequences doctrine. The court found Salome was not eligible for resentencing.
Salome 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 independently review the record for error as mandated by Wende. We offered Salome the opportunity to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
The facts of the offense are fully set forth in our prior opinion. We will not repeat them here. (People v. Salome, supra, DO74447.)
DISCUSSION
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, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that were considered in evaluating the potential merits of this appeal.
Salome devotes a considerable portion of his brief to the argument we should apply the Wende independent judicial review process to this appeal. We decline to address the several Court of Appeal opinions that have held such judicial review is not required.
1. Did section 1170.95, subdivision (c) require the trial court to review the record of the case to consider the sufficiency of evidence that Salome had the intent to kill the victim?
2. Did section 1170.95, subdivision (c) require the court to grant relief unless, based on the record of the case, the prosecution could prove that beyond a reasonable doubt that Salome had harbored malice as required by amended Penal Code sections 188 and 189?
We have independently 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 Salome on this appeal.
DISPOSITION
The order denying Salome's petition for resentencing under section 1170.95 is affirmed.
WE CONCUR: HALLER, J. AARON, J.