Filed 1/27/22 P. v. Preciado CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B313831
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA088962)
v.
VICTOR PRECIADO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Teresa P. Magno, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
**********
In May 2010, a jury found defendant and appellant Victor
Preciado guilty of four counts of murder arising from three
separate gang-related driveby shootings in November 2006. The
jury found true the special allegation that a principal personally
and intentionally discharged a firearm, within the meaning of
Penal Code section 12022.53, subdivisions (b), (c), (d) and (e)(1) as
to all four counts and found true the allegation that defendant
personally used a firearm in the commission of the count 4
murder (id., subds. (b)–(d)). The jury also found true the multiple
murder special circumstance allegation (§ 190.2, subd. (a)(3)), and
the special circumstance allegations that the murders were
intentionally committed by means of discharging a firearm from
a motor vehicle “with the intent to inflict death” (§ 190.2,
subd. (a)(21)), and defendant intentionally committed the
murders while an active gang member for purposes of furthering
the activities of a criminal street gang (§ 190.2, subd. (a)(22)).
A jailhouse informant testified at trial that defendant
confessed to being “the ‘mastermind’ behind a driveby shooting
involving members of his gang” and also admitted using “a rifle
to shoot a woman because his gang was feuding with another
gang.” (People v. Preciado (Mar. 21, 2012, B226362) [nonpub.
opn.].)
Defendant was sentenced to life imprisonment without the
possibility of parole, plus a consecutive sentence of 25 years to life
on each of the four murder counts.
A panel of this court affirmed defendant’s conviction in an
unpublished decision after modifying the judgment to reduce the
restitution fine to $10,000. (People v. Preciado, supra, B226362.)
In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was
passed. Penal Code section 1170.95 was enacted as part of the
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legislative changes effected by Senate Bill 1437 and became
effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
In November 2020, defendant filed in propria persona his
petition for resentencing pursuant to Penal Code section 1170.95
requesting resentencing on the grounds he was convicted of the
four murders as an aider and abettor. The court appointed
counsel for defendant and received briefing from the parties.
The trial court, without holding a hearing, denied
defendant’s petition. The court explained it had considered the
parties’ briefing and the record of conviction, including the
information, verdict forms and jury instructions in reaching its
decision. The court reasoned defendant was ineligible for relief
because he had been found guilty of four counts of first degree
murder, none of which was based on a felony murder or natural
and probable consequences theory, and the special circumstance
findings demonstrated the jury found defendant acted with the
intent to kill in all four murders.
We appointed appellate counsel to represent defendant.
Defendant’s appointed counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were
raised. The brief included a declaration from counsel that she
reviewed the record and sent a letter to defendant explaining her
evaluation of the record. Counsel further declared she advised
defendant of his right, under Wende, to submit a supplemental
brief within 30 days, and forwarded copies of the record to
defendant. No supplemental brief was filed.
Counsel requested we exercise our discretion to
independently review the record for error, citing People v. Flores
(2020) 54 Cal.App.5th 266, 274 (“although it is not required
under law, we think an appellate court can and should
independently review the record on appeal when an indigent
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defendant’s appointed counsel has filed a Wende brief in a
postjudgment appeal from a summary denial of a section 1170.95
petition (regardless of whether the petitioner has filed a
supplemental brief)”).
Other courts have concluded that where, as here, a
defendant chooses not to file a supplemental brief, the Court of
Appeal need not undertake Wende review but may dismiss the
appeal as abandoned. (See, e.g., People v. Cole (2020)
52 Cal.App.5th 1023, 1039; see also People v. Serrano (2012)
211 Cal.App.4th 496, 501 [because a defendant appealing from a
postjudgment denial of a motion to vacate “has no constitutional
right to counsel” he is not entitled to Wende review when
appointed counsel finds no arguable issues].)
The Supreme Court is now considering the issue, that is
“[w]hat procedures must appointed counsel and the Courts of
Appeal follow when counsel determines that an appeal from an
order denying postconviction relief lacks arguable merit” and
whether a defendant is “entitled to notice of these procedures.”
(People v. Delgadillo (Nov. 18, 2020, B304441) 2020 Cal.App.
Unpub.Lexis 1185, review granted Feb. 17, 2021, S266305.)
Pending further guidance from the Supreme Court, we
have exercised our discretion to independently review the record.
We have examined the entire record of proceedings
submitted to this court and are satisfied that appointed counsel
fully complied with her responsibilities in assessing whether or
not any colorable appellate issues exist. We conclude there are
no arguable appellate issues. (People v. Kelly (2006) 40 Cal.4th
106; Wende, supra, 25 Cal.3d 436.)
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DISPOSITION
The order denying defendant’s petition for resentencing is
affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
HARUTUNIAN, J.*
*
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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