Filed 9/28/22 P. v. Duenas CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE,
Plaintiff and Respondent, C096005
v. (Super. Ct. No. STK-CR-FE-
2010-0007199)
NOAH EUGENE DUENAS,
Defendant and Appellant.
Appointed counsel for defendant Noah Duenas asked this court to review the
record and determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Defendant filed a supplemental brief claiming the trial
court erred in denying his petition for resentencing under Penal Code section 1172.6.1
1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the
Legislature renumbered former section 1170.95 to become section 1172.6. (Stats. 2022,
ch. 58, § 10.) There were no substantive changes to the statute. Although defendant filed
his petition under former section 1170.95, we cite the current section number throughout
this opinion.
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Finding no arguable error that would result in a disposition more favorable to defendant,
we will affirm the judgment.
I
The background comes from this court’s prior opinion in defendant’s direct
appeal. (People v. Duenas (May 21, 2014, C070823) [nonpub. opn.] (Duenas).) We
granted defendant’s request to incorporate by reference case No. C070823.
Defendant was conversing with Jose “Boo” Lua when defendant suddenly shot
Lua in the head and fled the scene. Defendant said he shot Lua in self-defense because
Lua verbally threatened defendant and a family member. The jury found defendant guilty
of first degree murder and found he personally and intentionally discharged a firearm
causing Lua’s death. Defendant received a sentence of 50 years to life in prison.
(Duenas, supra, C070823.)
This court affirmed the judgment. Among other things, defendant argued on
appeal that there was insufficient evidence to support the jury’s premeditation and
deliberation finding. After reviewing the record, this court concluded that based on the
manner and circumstances of the killing, the evidence was sufficient to support the jury’s
finding. (Duenas, supra, C070823.)
On February 28, 2022, defendant filed a petition for resentencing pursuant to
section 1172.6. The form petition had boxes checked asserting defendant was convicted
of murder under a theory of felony murder or the natural and probable consequences
doctrine and could not now be convicted of murder because of changes made to sections
188 and 189, effective January 1, 2019. Defendant requested appointment of counsel.
On March 7, 2022, the trial court summarily denied defendant’s petition by written
order, stating that defendant had not made a prima facie showing because he was
convicted of personally discharging a firearm and he testified that he was the shooter.
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II
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
With this court’s permission, defendant filed a supplemental brief after 30 days.
We need not address whether and under what circumstances the protections
afforded by Wende apply to this appeal. Because counsel asked for Wende review and
defendant filed a supplemental brief, we exercise our discretion to review the case.
Defendant’s supplemental brief challenges the trial court’s denial of his petition
for resentencing, arguing the trial court should have appointed counsel for him. We
conclude the error was harmless.
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, was
enacted to amend the felony-murder rule and eliminate the natural and probable
consequences doctrine as it relates to murder. (Stats. 2018, ch. 1015, § 4; People v.
Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275.) It amended sections 188 and
189 “ ‘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. Lewis (2021)
11 Cal.5th 952, 959 (Lewis).)
The bill also added what is now section 1172.6, which permits persons convicted
of felony murder or murder under the natural and probable consequences doctrine to
petition for resentencing if the person “could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made effective January 1,
2019.” (§ 1172.6, subd. (a)(1)-(3).) After a properly filed petition is received, the
process is as follows: (1) the trial court must appoint counsel, if requested, (2) the
prosecutor files a response, (3) the defendant may file a reply, and (4) the trial court shall
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hold a hearing to determine whether the petitioner has made a prima facie case for relief.
(§ 1172.6, subds. (b)-(c).) If a prima facie case is made, the trial court must issue an
order to show cause and hold an evidentiary hearing where the prosecutor must then
establish, beyond a reasonable doubt, that defendant is guilty of murder or attempted
murder under amended sections 188 or 189. (§ 1172.6, subd. (d)(1)-(3).) If the trial
court declines to issue an order to show cause, it must provide a statement fully setting
forth its reasons for doing so. (§ 1172.6, subd. (c).)
We agree with defendant that the trial court should have appointed counsel for
him. In addition, the trial court should have held a prima facie hearing. But the errors
were harmless. The Watson2 standard is applied to procedural errors made under
section 1172.6. (Lewis, supra, 11 Cal.5th at p. 973.) Defendant must show it is
reasonably probable his petition would have proceeded to an evidentiary hearing if the
proper prima facie procedures had been followed. (Id. at p. 974; see also People v.
Watson, supra, 46 Cal.2d at p. 836.)
Here, however, the jury convicted defendant of murder with premeditation and
deliberation, and this court upheld the jury’s finding of deliberation and premeditation in
his direct appeal, an analysis properly considered in evaluating defendant’s petition for
resentencing. (Lewis, supra, 11 Cal.5th at p. 972.) In addition, defendant admitted
shooting Lua. Although he claimed self-defense, the jury must have rejected the claim.
And as the actual killer, the changes to sections 188 and 189 brought about by Senate Bill
No. 1437 are inapplicable to defendant. (See, e.g., People v. Harden (2022)
81 Cal.App.5th 45, 59-60 [“Harden’s record of conviction conclusively establishes, with
no factfinding, weighing of evidence, or credibility determinations, that she was the
actual killer. . . . The trial court, therefore, correctly denied her petition at the prima facie
2 People v. Watson (1956) 46 Cal.2d 818.
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stage.”].) On this record, it is not reasonably probable defendant could have made a
prima facie showing had the trial court appointed counsel and held a prima facie hearing.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The trial court’s order denying defendant petition for resentencing is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
HOCH, J.
/S/
BOULWARE EURIE, J.
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