Filed 11/18/21 P. v. Valdes CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B312813
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA134222)
v.
JOSE ANTONIO VALDES,
Defendant and Appellant.
THE COURT:
Jose Antonio Valdes (defendant) appeals the trial court’s
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denial of his motion for relief under Penal Code section 1170.95.
Defendant’s attorney filed a brief raising no issues and asked this
court to independently review the record. On September 1, 2021,
we notified defendant of his counsel's brief and gave him leave to
file, within 30 days, his own brief or letter stating any grounds or
1 All further statutory references are to the Penal Code
unless otherwise indicated.
argument he might wish to have considered. That time has
elapsed, and defendant has submitted no brief or letter.
We conclude that the trial court did not err in denying the
petition.
FACTUAL AND PROCEDURAL BACKGROUND
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I. Facts
A. The underlying crime
In April 2012, defendant and a fellow gang member,
Maximiliano Guadalupe Murillo (Murillo), drove into rival gang
territory. They were joined by a third fellow gang member,
Ricardo Virgen (Virgen), who drove separately. The three men
came upon a rival gang member, and one of them—namely,
Virgen—fired 10 shots from two different firearms, killing him
instantly.
B. Prosecution, conviction, and appeal
The People charged defendant, Murillo, and Virgen, with
murder (§ 187, subd. (a)), and further alleged that the murder
was gang related as defined in section 186.22, subdivision
(b)(1)(C). The People further alleged that a principal in the crime
discharged a firearm (§ 12022.53, subds. (d) & (e)(1)), and that
defendant and Virgen had personally discharged a firearm
(§ 12022.53, subd. (d)). The matter proceeded to a joint trial. A
jury found defendant guilty of second degree murder, and found
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. Murillo (Mar.
8, 2018, B275684).)
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the gang allegation and the principal’s use of a firearm allegation
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to be true.
The trial court sentenced defendant to prison for 40 years
to life, comprised of 15 years to life for second degree murder plus
25 years to life for a principal’s use of a firearm.
Defendant appealed his conviction and, in an unpublished
opinion, we affirmed his conviction but struck the portion of his
sentence imposing (but staying) the gang enhancement and
remanded to allow the trial court to consider its newly conferred
discretion to strike the firearm enhancement; on remand, the
trial court declined to exercise its discretion.
II. Procedural Background
On November 21, 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he had been
charged with murder, that he was convicted “pursuant to the
felony murder rule or the natural and probable consequences
doctrine,” and that his murder conviction would be invalid under
the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.” The People opposed the petition arguing that
defendant was prosecuted as a direct aider and abettor to the
murder, and not pursuant to either a felony murder or a natural
and probable consequences theory of culpability.
After appointing counsel for defendant and holding a
hearing, the trial court on April 14, 2021, denied defendant’s
3 The jury convicted Virgen of first degree murder and found
that he personally discharged a weapon; and convicted Murillo of
second degree murder but did not find true the allegation that he
personally discharged a firearm.
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petition on the ground that his jury had not been instructed on
any of the legal theories invalidated by section 1170.95.
Defendant timely appealed this denial.
DISCUSSION
Defendant’s appointed counsel filed an “Opening Brief” in
which no arguable issues are raised, and asked this court for an
independent review of the record as required by People
v. Wende (1979) 25 Cal.3d 436. Because defendant appeals from
an order denying postconviction relief and because defendant did
not avail himself of the right to file a supplemental brief, we may
properly dismiss this appeal as abandoned. (People v. Cole (2020)
52 Cal.App.5th 1023, 1039-1040, review granted Oct. 14, 2020,
S264278.) However, because the Supreme Court has granted
review of Cole and is also reviewing the question of what
procedures this court must follow when counsel determines that
an appeal from an order denying postconviction relief lacks
arguable merit (People v. Delgadillo, review granted Feb. 17,
2021, S266305), we will accept counsel’s invitation to conduct
a Wende review of defendant’s appeal in an abundance of caution
rather than dismiss the appeal as abandoned.
A person is entitled to relief under section 1170.95 if, as
relevant here, (1) “[a] complaint, information, or indictment was
filed against [him] that allowed the prosecution to proceed under
a theory of felony murder or murder under the natural and
probable consequences doctrine,” (2) he “was convicted of first
degree . . . murder,” and (3) he “could not be convicted of first . . .
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a).) In January
2019, our Legislature amended section 188 to provide that “in
order to be convicted of murder, a principal in a crime shall act
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with malice aforethought” and that “[m]alice shall not be imputed
to a person based solely on his . . . participation in a crime.”
(§ 188, subd. (a)(3).) Our Legislature’s purpose was to ensure
that “[a] person’s culpability for murder [is] premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018, ch.
1015, § 1(g).)
In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), our
Supreme Court held that a person seeking relief under section
1170.95 is entitled to the appointment of counsel (if requested)
upon the filing of a facially sufficient petition. (Lewis, at pp. 957-
958.) If the defendant in his petition ‘“makes a prima facie
showing that he . . . is entitled to relief”’ under that section, the
trial court “must hold a hearing ‘to determine whether to vacate
[his] murder conviction’” and to resentence him on any remaining
counts. (Id. at pp. 957, 960, citing § 1170.95, subds. (c) & (d).)
The Lewis court held that only after the appointment of counsel
and the opportunity for briefing may the superior court consider
the record of conviction to determine whether the petitioner has
made a prima facie showing that he or she is entitled to relief.
(Lewis, at pp. 970-971.) The court nonetheless concluded that the
deprivation of a petitioner’s right to counsel under subdivision (c)
of section 1170.95 is state law error only, tested for prejudice
under People v. Watson (1956) 46 Cal.2d 818. (Id. at pp. 957-958,
973-974.) On appeal, a petitioner ‘“whose petition is denied
before an order to show cause issues has the burden of showing
“it is reasonably probable that if [he or she] had been afforded
assistance of counsel his [or her] petition would not have been
summarily denied without an evidentiary hearing.’”” (Id. at p.
974.)
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Here, the trial court correctly concluded that defendant did
not make out a prima facie case for relief because the record of
conviction establishes, as a matter of law, that he is not eligible
for relief. A defendant is ineligible for relief under section
1170.95 as a matter of law where “the jury was not instructed on
a natural and probable consequences or felony-murder theory of
liability.” (People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5,
review granted July 22, 2020, S262835.) The trial court did not
instruct the jury on either theory with respect to defendant, and
he is hence ineligible for relief under section 1170.95.
Having conducted our own examination of the record, we
are satisfied that no arguable issue exists which would call into
question defendant’s ineligibility for resentencing relief under
section 1170.95.
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
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ASHMANN-GERST, Acting P. J., CHAVEZ, J., HOFFSTADT, J.
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