Filed 4/7/23 P. v. Cramer CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B323998
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA026502)
v.
ARMANDO VICENTE
CRAMER,
Defendant and Appellant.
THE COURT:
Defendant and appellant Armando Vicente Cramer
(defendant) appeals from the denial of his petition for vacatur of
his murder conviction and for resentencing under Penal Code
former section 1170.95, now section 1172.6.1 Defendant’s
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
appointed counsel found no arguable issues and filed a brief
requesting that we exercise our discretion to conduct an
independent review of the record according to the procedure set
forth in People v. Wende (1979) 25 Cal.3d 436, or in the
alternative, under the standard articulated People v. Delgadillo
(2022) 14 Cal.5th 216 (Delgadillo). Following the standard
articulated Delgadillo, we consider defendant’s supplemental
brief and conduct a limited review of the record. (See Delgadillo,
at pp. 230–232.) Finding no merit to defendant’s appeal, we
affirm the judgment.
BACKGROUND
In 1996, defendant was convicted of attempted murder,
which the jury found to have been willful, deliberate, and
premeditated. Defendant was also convicted of first degree
residential burglary. The jury also found true the allegations
that in the commission of both offenses, defendant personally
used a firearm (§12022.5, subd. (a)) and personally inflicted great
bodily injury on the victim. (§ 12022.7, subd. (a)). The trial court
found true that defendant had committed a serious or violent
felony, alleged pursuant to section 1170.12, subdivisions (a)
through (d) and section 667, subdivisions (b) through (i), the
Three Strikes Law, and a prior conviction alleged pursuant to
section 667.5, subdivision (b). The court sentenced defendant to a
total term of 34 years to life in prison. We affirmed the judgment
in People v. Cramer (March 18, 1998, B102881) [nonpub. opn.].
ch. 58, § 10.) We will refer to the section by its new numbering
only.
All further unattributed code sections are to the Penal Code
unless otherwise stated.
2
After defendant’s conviction, the Legislature passed Senate
Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), amending
sections 188 and 189, the laws pertaining to felony murder and
murder under the natural and probable consequences doctrine,
“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.” (Stats. 2018, ch. 1015, § 1,
subd. (f).) The Legislature also added what is now section 1172.6,
which provides a procedure for those convicted of murder or
attempted murder to seek retroactive relief if they could not now
be convicted under the amended laws. (§ 1172.6, subd. (a); see
People v. Lewis (2021) 11 Cal.5th 952, 957.)
On March 15, 2022, defendant filed his section 1172.6
petition, alleging that an information had been filed against him
which allowed the prosecution to proceed under a theory of felony
murder, the natural and probable consequences doctrine, or other
theory under which malice is imputed to a person based solely on
that person’s participation in a crime; that he was convicted of
attempted murder; and that he could not now be convicted of
attempted murder because of the changes to sections 188 and 189
effective January 1, 2019. Defendant also filed a pro. per.
petition to be resentenced under sections 1385, 1171, and
1171.1.2 The trial court summarily denied defendant’s petition,
2 Section 1171 was renumbered 1172.7 and amended by
Stats. 2022, ch. 58, section 11, effective June 30, 2022, and
section 1171.1 was renumbered 1172.75 and amended by Stats.
2022, ch. 58, section 12, also effective June 30, 2022. The trial
court summarily denied defendant’s petition prior to the hearing
on the section 1172.6 petition, as recommendations for such relief
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as motions of that kind must be made to the trial court by
designated public agencies, not by individual defendants.
After counsel was appointed for defendant, the prosecutor
filed an opposition to the section 1172.6 petition, including as
exhibits the jury instructions and verdicts in defendant’s 1996
trial, and our opinion in People v. Cramer, supra, B10288.
Defense counsel in a reply brief, sought an independent review
pursuant to People v. Wende, supra, 25 Cal.3d 436. Defendant’s
reply also included an invitation to the prosecutor to recommend
resentencing under section 1170.03, (renumbered 1172.1, and
now renumbered 1172.75). (See Stats. 2022, ch. 58, § 9.) Since
the prosecutor did not make a section 1172.75 recommendation,
the trial court did not consider that issue.
On September 1, 2022, the trial court heard the argument
of defense counsel, while the prosecution submitted the matter
without argument. The trial court noted that since the personal
use of a firearm allegation was found true in defendant’s trial,
defendant was determined to be the actual shooter. The court
also noted there had been no jury instructions given regarding
the natural and probable consequences doctrine or aiding and
abetting, thus no indication that anyone else was involved in the
crime. Concluding that defendant had not made a prima facie
must be made to the trial court by designated public agencies, not
by defendants themselves. (See §1172.7, subd. (a); §1172.75,
subd. (b).) Without the proper recommendation the trial court
did not have jurisdiction over the issues presented in defendant’s
pro. per. petition. (See e.g. People v. McMurray (2022) 76
Cal.App.5th 1035, 1040.)
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showing of eligibility under section 1172.6, the court denied the
petition.
Defendant filed a timely notice of appeal from the court’s
order.
DISCUSSION
After examination of the record appointed counsel filed an
opening brief raising no issues. Where, as here, appointed counsel
finds no arguable issues in an appeal that is not from the first
appeal after conviction, we are not required to conduct an
independent review of the record pursuant to People v. Wende,
supra, 25 Cal.3d 436, or its federal constitutional counterpart,
Anders v. California (1967) 386 U.S. 738. (See Delgadillo, supra,
14 Cal.5th at p. 226.) However, even if we do not independently
review the record to identify unraised issues in such a case, we
give the defendant the opportunity to file his or her own
supplemental brief or letter and we then evaluate any specific
arguments raised. (See id., at p. 232.)
Here, counsel provided defendant with a copy of the record
on appeal and informed him of his right to file his own
supplemental brief. On February 8, 2023, we notified defendant
of counsel’s brief, gave him 30 days to file his own letter or brief
stating any grounds for an appeal, contentions, or arguments
that he wished to be considered, and advised him that if no
supplemental brief or letter is timely filed the court may dismiss
the appeal as abandoned. Defendant then filed a supplemental
brief within the time allowed but raised no issue regarding his
section 1172.6 petition.
Instead, defendant asked that this court consider any
benefit he might qualify for under any new laws, such as sections
1385, 1170, 1170.03, 1171, 1171.1, and any laws passed by the
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Legislature in Senate Bills 483, 136, 1393, 620, 81, 567 and
Assembly Bill 1540. Other than the denial of his section 1172.6
petition, defendant has not demonstrated that any of the cited
statutes and legislative bills relate to any order that is made
appealable by section 1237. As defendant has raised no issue
regarding the denial of his section 1172.6 petition, the order
which is subject to this appeal, we are thus not required to
undertake an independent review of the record in search for
arguable issues. (Delgadillo, supra, 14 Cal.5th at p. 226.)
However, we “can readily confirm that . . . defendant is
ineligible for relief as a matter of law without conducting an
independent review of the entire record.” (Delgadillo, supra, 14
Cal.5th at p. 230.) During the prima facie review, if the record of
conviction contains facts refuting the allegations of the petition
as a matter of law, no prima facie showing can be made, and the
petition is properly denied. (People v. Lewis, supra, 11 Cal.5th at
p. 971.) For example, where the record shows no jury
instructions were given regarding felony murder or the natural
and probable consequences doctrine, or that petitioner was the
actual perpetrator, he is ineligible for relief as a matter of law.
(People v. Harden (2022) 81 Cal.App.5th 45, 52–53, 55–56.)
Like the trial court, we have reviewed the jury instructions
included with the prosecutor’s response to the petition, and found
no instructions regarding aiding and abetting, thereby
demonstrating that defendant was the sole participant in the
crime. We have also found no instructions regarding the felony
murder rule or the natural and probable consequences doctrine.
Our review of the verdicts confirm that the jury found that
defendant premeditated the attempt to murder the victim and
that he personally used a firearm in the commission of the crime.
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The verdict and the instructions demonstrate that defendant was
the actual perpetrator and ineligible for relief under section
1172.6 as a matter of law. (See People v. Harden, supra, 81
Cal.App.5th a pp. 55–56.) The trial court did not err in denying
the petition.
DISPOSITION
The order denying the section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
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