Filed 8/30/21 P. v. Sandoval CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B307142
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA033403)
v.
JOSE SANDOVAL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael Terrell, Judge. Affirmed.
Marilyn G. Burkhardt, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________________________
In 1998, defendant and appellant Jose Sandoval
participated in a gang shooting in which a purported rival gang
member was shot and killed and a police officer was shot and
injured.1 A jury found Sandoval guilty of first degree murder
(Pen. Code, § 187 [count 1]),2 attempted murder (§§ 187, subd.
(a)/664 [count 2] ), and unlawful driving or taking of a vehicle
(Veh. Code, § 10851 [count 3] ). With respect to counts 1 and 2,
the jury found true the allegations that a principal intentionally
discharged a firearm within the meaning of section 12022.53,
subdivisions (d) and (e)(1), and that crimes were committed for
the benefit of, at the direction of, or in association with a criminal
street gang with the specific intent to promote, further and assist
in criminal conduct by gang members in violation of section
186.22, subdivision (b)(1).
Sandoval was sentenced to 25 years to life in prison in
count 1, plus 25 years to life for the firearm allegation. In count
2, Sandoval was sentenced to 9 years in prison, plus 25 years to
life for the firearm allegation. In count 3, the trial court imposed
a concurrent term of three years.
Sandoval timely appealed. This court affirmed the trial
court’s judgment.
On January 1, 2019, Senate Bill No. 1437, which created a
procedure by which a person convicted of murder “who did not act
1 The facts with respect to the underlying offenses are
taken from this court’s opinion in People v. Sandoval (Apr. 8,
2002, B147718) [nonpub. opn.]. The opinion was included in the
People’s response to Sandoval’s petition for resentencing.
2 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
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with implied or express malice” may seek relief from liability if
the person 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” became effective.
(People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez);
Stats. 2018, ch. 1015, § 1, subds. (f), (g).) Senate Bill 1437 also
added section 1170.95, which permits persons convicted of
murder under a felony murder or natural and probable
consequences theory to petition in the sentencing court for an
order vacating their convictions and allowing defendant to be
resentenced. (Stats. 2018, ch. 1015, § 4; Martinez, supra, 31
Cal.App.5th at p. 723.)
On January 7, 2019, Sandoval filed a facially sufficient
petition for resentencing under section 1170.95. Sandoval
requested, and was appointed counsel, who filed a supplemental
memorandum of points and authorities in support of his petition
in response to the prosecutor’s opposition, and represented him at
a hearing on the petition. The trial court denied Sandoval’s
petition, finding that he failed to meet his burden of making a
prima facie showing of eligibility because he failed to establish
that he was prosecuted under either a felony murder or natural
and probable consequences theory of liability, and failed to show
that he could not be convicted of murder under the current laws.
Sandoval appealed, and his appointed counsel filed a brief
pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no
issues. On June 14, 2021, we notified Sandoval of his counsel’s
brief and gave him leave to file, within 30 days, his own brief or
letter stating any grounds or argument he might wish to have
considered. That time has elapsed, and Sandoval has submitted
no brief or letter.
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We conclude that the trial court did not err in denying the
petition. Sandoval’s record of conviction shows that he was
prosecuted as a direct aider and abettor, and not under a felony
murder theory or the natural and probable consequences
doctrine. Accordingly, he cannot make a prima facie showing he
is entitled to relief under section 1170.95. We have
independently reviewed the entire record and are satisfied that
Sandoval’s attorney has fully complied with her responsibilities
and that no other arguable issues exist. (Smith v. Robbins (2000)
528 U.S. 259, 278–279; People v. Kelly (2006) 40 Cal.4th 106,
123–124.)
DISPOSITION
The trial court’s order denying Sandoval’s section 1170.95
petition for resentencing is affirmed.
MOOR, J.
We concur:
BAKER, Acting P.J.
KIM, J.
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