Opinion
2d Crim. No. B298824
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO VARGAS, Defendant and Appellant.
Law Offices of Allen G. Weinberg and Allen G. Weinberg, under appointment by the Court of Appeal for Defendant and Appellant. No appearance by Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1396730)
(Santa Barbara County)
Francisco Vargas appeals a June 4, 2019 order denying his petition for resentencing under Penal Code section 1170.95 following a 2012 conviction by plea to second degree murder with a gang enhancement. (§§187, subd. (a), 186.22, subd. (b).) Appellant was sentenced to 15 years to life in 2013.
All statutory references are to the Penal Code unless otherwise stated.
We appointed counsel to represent appellant in this appeal. After examination of the record, counsel filed an opening brief requesting the court to make an independent review under People v. Wende (1979) 25 Cal.3d 436. On February 20, 2020, we sent a letter advising appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. No response has been received.
The record reflects that, in 2010, appellant (aka Nightmare) drove fellow Lompoc gang members, Roberto Castaneda, Christopher Jamie, Ray Cardoza, Eric Monroy, and David Yang, to a drug dealer's apartment to collect a Mexican Mafia gang tax. The group was told to "blast" the victim if he did not pay up. Appellant put two shotguns in his car trunk and drove everyone to the victim's apartment. After the group approached the victim and asked if he was "Pollo," Castaneda and Monroy fired the shotguns at the victim, killing him. Appellant then drove Castaneda and Monroy to a friend's house where they showered, changed clothes, and hid the shotguns.
In 2012, appellant testified in Castaneda's murder trial, in exchange for a plea of guilty to second degree murder with a gang enhancement. Pursuant to the plea agreement, appellant was sentenced to 15 years to life.
In 2018, we conditionally reversed Castaneda's first degree murder conviction in an unpublished opinion People v. Castaneda (July 26, 2018, B249571), and remanded Castaneda's case to conduct, among other things, a fitness hearing. (Welf. & Inst. Code, § 707, subd. (a); People v. Superior Court (Lara) (2018) 4 Cal.5th 299.) --------
In 2019, appellant petitioned for resentencing under recently enacted amendments to the felony murder rule. (§§ 188, 189, subd. (e), 1170.95.) After appointing counsel and independently reviewing the record of the conviction, the trial court denied the petition on the ground that the petition failed to make a prima facie showing that appellant could not have been convicted of second degree murder based on the 2019 changes to sections 188 or 189. (See § 1170.95, subd. (a)(3).) Section 1170.95 provides that a person convicted of murder may be eligible for resentencing if that person "could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a)(3).) The recent changes to section 189 provide that a person who commits a robbery or burglary in which a death occurs may be convicted of murder if that person "was a major participant in the underlying felony and acted with reckless indifference to human life . . . ." (§ 189, subd. (e)(3).)
We have reviewed the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 443; People v. Kelly (2006) 40 Cal.4th 106, 126.)
The judgment (order denying petition for resentencing) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P. J.
TANGEMAN, J.
Gustavo Lavayen, Judge
Superior Court County of Santa Barbara
Law Offices of Allen G. Weinberg and Allen G. Weinberg, under appointment by the Court of Appeal for Defendant and Appellant.
No appearance by Respondent.