Filed 8/15/22 P. v. Salceda CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B318331
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA071124
v.
HECTOR CAMPOS SALCEDA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Affirmed.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Hector Campos Salceda appeals from an order denying his
petition for resentencing under Penal Code1 section 1170.95 (now
§ 1172.6).2 His appellate counsel declared he was unable to find
any arguable issues and asked us to proceed under People v.
Serrano (2012) 211 Cal.App.4th 496. Some appellate courts have
held that an appeal from a postconviction order may be dismissed
as abandoned if counsel has found no arguable issues and the
defendant has not filed a supplemental brief. (See, e.g., People v.
Cole (2020) 52 Cal.App.5th 1023, 1028, review granted Oct. 14,
2020, S264278; Serrano, at p. 501.) After exercising our discretion
to conduct a review of the merits of the appeal under People v.
Wende (1979) 25 Cal.3d 436 (Wende), we affirm the order.
BACKGROUND
Salceda summarized the underlying facts from the
probation report and the People’s opposition to the resentencing
petition which, in turn, summarized the facts set forth in our
prior opinion affirming the judgment of conviction, People v.
Salceda (Feb. 23, 2021, B298363) [nonpub. opn.] (Salceda). Our
summary of the facts and procedural history are taken from
Salceda and the record in this appeal.
This matter arises out of events occurring in March 2017
when Salceda shot and killed Jacob Sullivan. As described in
1 All undesignated statutory references are to the Penal Code.
2Effective June 30, 2022, section 1170.95 was renumbered section
1172.6, with no change to the text (Stats. 2022, ch. 58, § 10). For
convenience, we refer to the former statute number throughout this
opinion.
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Salceda, he admitted killing Sullivan during a robbery. The
People charged Salceda with murder (§ 187, subd. (a)), alleging
he killed Sullivan during the commission of a robbery (§ 190.2,
subd. (a)(17)). The People also alleged Salceda personally and
intentionally fired a gun during the offense, causing Sullivan’s
death (§ 12022.53, subd. (d)). In April 2019, a jury found Salceda
guilty of first degree murder and found true the gun and special
circumstance robbery allegations. On May 14, 2019, the court
sentenced Salceda to life imprisonment without the possibility of
parole, plus 25 years to life for the gun enhancement.
After Salceda was charged with Sullivan’s murder, our
Legislature enacted Senate Bill No. 1437, which took effect on
January 1, 2019, and added section 1170.95. That law
“ ‘amend[ed] the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who 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.’ ” (People v. Gentile (2020) 10 Cal.5th
830, 842.)
On September 8, 2021, Salceda, representing himself, filed a
three-page form petition for resentencing under section 1170.95.
He requested the appointment of counsel for the resentencing
process. On the form, Salceda checked Boxes 2a and 3 which
alleged he was convicted of first or second degree murder
pursuant to the felony murder rule or the natural and probable
consequences doctrine, and his murder conviction is no longer
valid because of changes made to sections 188 and 189. A
defendant is to check Box 5 if he has been convicted of first degree
felony murder but could not now be convicted of that crime for
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enumerated reasons. Salceda did not check Box 5. Salceda also
left unchecked all the boxes under Box 5, including the box
indicating that he “was not the actual killer.”
The trial court appointed counsel for Salceda and ordered
the People to respond to the petition. In their written opposition
to the petition, the People argued that Salceda is ineligible for
relief because the record of conviction showed he was the actual
killer. Salceda—now represented by counsel—did not file a reply.
After reviewing the court file—including the jury’s findings,
Salceda’s petition, and the People’s opposition—the court denied
the petition on February 8, 2022. The court explained that
Salceda did not make a prima facie showing of entitlement to
relief under section 1170.95 because he was “the actual killer in
this case, and he did not indicate that he was not the actual
killer.”
Salceda filed a timely notice of appeal. On June 6, 2022,
appointed counsel filed a brief in which counsel raised no issues
and asked us to follow the procedures set forth in Serrano. On the
same day, appointed counsel informed Salceda that his attorney
and staff counsel for the Los Angeles California Appellate Project
had failed to find any arguable issues and that Salceda had a
right to file a supplemental brief with this court. To date, Salceda
has not filed a supplemental brief.
DISCUSSION
Because Salceda was convicted as the actual killer, he is
ineligible for relief under section 1170.95 as a matter of law. (See
§ 1170.95, subd. (a)(3) [petitioner is eligible for relief only if, inter
alia, “[t]he petitioner could not [now] be convicted of first or
second degree murder because of changes to Section 188 or 189
made [by Senate Bill No. 1437]”]; People v. Lewis (2021) 11
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Cal.5th 952, 959 [“the Legislature passed Senate Bill 1437 ‘to
amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who [inter alia] is not
the actual killer’ ”].)
We have examined the entire record, and are satisfied
appellate counsel has fully complied with counsel’s
responsibilities and no arguable issues exist in the appeal before
us. (Smith v. Robbins (2000) 528 U.S. 259, 278–284; Wende,
supra, 25 Cal.3d at p. 443.)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
ADAMS, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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