People v. Cruz CA1/2

Filed 9/25/23 P. v. Cruz CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
A165989
v.
ROBERT JESSE CRUZ, JR., (Sonoma County
Super. Ct. No. SCR295361)
Defendant and Appellant.

Defendant Robert Jesse Cruz, Jr. appeals the denial of his petition for
resentencing under Penal Code1 section 1172.6. His appointed counsel filed a
brief raising no arguable issues and requesting we exercise our discretion
under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) to review the
record for arguable issues in the manner required by People v. Wende (1979)
25 Cal.3d 436 (Wende). Defendant filed a supplemental brief. We affirm.
BACKGROUND
In 2001, a jury convicted defendant of second degree murder (§ 187)
and found true enhancements for personal gun use causing death
(§ 12022.53, subd. (d)), intentional discharge of a firearm (§ 12022.53, subd.

1 Further undesignated statutory references are to the Penal Code.

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(c)), and personal gun use (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)).
He was sentenced to 15 years to life for second degree murder, plus a
consecutive term of 25 years to life for the enhancement for personal gun use
causing death. The remaining enhancements were stayed. (People v. Cruz
(June 24, 2003, A095643) [nonpub. opn.] (Cruz).)
On direct appeal, this court summarized the evidence from trial, which
included defendant’s testimony admitting he had shot his girlfriend’s brother,
Lenard G., who died from the gunshot wounds. (Cruz, supra, A095643.) At
trial, defendant argued he had shot Lenard either in self-defense, in which
case he should be acquitted, or in the mistaken belief that he was acting in
self-defense, in which case he should be found guilty of voluntary
manslaughter. The jury rejected these claims. This court affirmed the
judgment. (Cruz, supra, A095643.)
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437
(2017–2018 Reg. Sess.) “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 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 bill also established a procedure under
former section 1170.95, now section 1172.62, for eligible defendants to
petition for resentencing. (Stats. 2018, ch. 1015, § 4.)
In March 2019, defendant filed his first petition for resentencing under
section 1172.6, alleging he had been prosecuted under either a felony murder

2 The Legislature renumbered the statute as section 1172.6, with no

change in text, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) For ease of
reference, we will cite to section 1172.6 throughout this opinion.

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theory or the natural and probable consequences doctrine; he was convicted
of first or second degree murder; and he could not currently be convicted of
murder because of the recent changes made by Senate Bill No. 1437.
The trial court denied the petition, finding defendant did not make a
prima facie showing for eligibility for relief because he “admitted shooting
Lenard” and “the jury was not instructed on the felony-murder or the
natural-and-probable-consequences theories of murder.”
On February 14, 2022, defendant filed a second petition for
resentencing under section 1172.6 based on the same allegations as his first
petition.
On June 21, following the appointment of counsel, receipt of briefing,
and holding a hearing, the trial court denied the second petition for the same
reasons it denied the first petition.
This appeal followed.3 We subsequently appointed counsel to represent
defendant.
DISCUSSION
Procedures under Delgadillo
In Wende, supra, 25 Cal.3d 436, our Supreme Court held that “Courts
of Appeal must conduct a review of the entire record whenever appointed
counsel submits a brief on direct appeal which raises no specific issues or
describes the appeal as frivolous.” (Delgadillo, supra, 14 Cal.5th at p. 221.)

3 Although the trial court issued its denial of the second petition on

June 21, 2022, and defendant’s notice of appeal was not filed until August 24,
2022, more than 60 days after the rendition of the order (Cal. Rules of Court,
rule 8.406(a)(1)), the record indicates defendant mailed the notice of appeal
from prison prior to the deadline to appeal. Under the circumstances, we
deem the appeal timely. (See Silverbrand v. County of Los Angeles (2009)
46 Cal.4th 106, 110; In re Jordan (1992) 4 Cal.4th 116, 118–119.)

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The Wende procedure applies “to the first appeal as of right and is compelled
by the constitutional right to counsel under the Fourteenth Amendment of
the United States Constitution.” (Delgadillo, at p. 221.)
In Delgadillo, our Supreme Court held that a Wende analysis is not
applicable to a trial court’s order denying a petition for postconviction relief
under section 1172.6, because the denial does not implicate a defendant’s
constitutional right to counsel in a first appeal as of right. (Delgadillo, supra,
14 Cal.5th at p. 222.) The court also determined that general due process
principles regarding fundamental fairness do not compel a Wende review of
the order. (Delgadillo, at pp. 229–232.)
Delgadillo held that instead of using the process outlined in Wende,
appointed counsel and the appellate court should do the following: “When
appointed counsel finds no arguable issues to be pursued on appeal:
(1) counsel should file a brief informing the court of that determination,
including a concise recitation of the facts bearing on the denial of the petition;
and (2) the court should send, with a copy of counsel’s brief, notice to the
defendant, informing the defendant of the right to file a supplemental letter
or brief and that if no letter or brief is filed within 30 days, the court may
dismiss the matter.” (Delgadillo, supra, at pp. 231–232.)
“If the defendant subsequently files a supplemental brief or letter, the
Court of Appeal is required to evaluate the specific arguments presented in
that brief and to issue a written opinion.” (Delgadillo, supra, 14 Cal.5th at
p. 232.)
“The filing of a supplemental brief or letter does not compel an
independent review of the entire record to identify unraised issues. . . . While
it is wholly within the court’s discretion, the Court of Appeal is not barred
from conducting its own independent review of the record in any individual

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section 1172.6 appeal.” (Delgadillo, supra, 14 Cal.5th at p. 232.)
Defendant’s appellate counsel filed a brief raising no issues and
requesting that we exercise our discretion to independently review the record
for error pursuant to Delgadillo. The brief includes counsel’s declaration that
states defendant was advised he could file his own brief with this court. On
May 11, 2023, we notified defendant that the appeal would be dismissed as
abandoned if he failed to submit a supplemental brief or letter within 30
days. On May 16, we received defendant’s one-page supplemental letter.
Analysis
Turning to the issues raised in defendant’s supplemental letter, he
asserts appellate counsel was ineffective for filing a brief under Delgadillo,
instead of filing motions based on “new laws that [were] signed by Governor
Newsom.” The “new laws” he cites are apparently four Assembly Bills and
four Senate Bills: “AB 256 . . . [,] AB 960 . . . [,] SB 467 . . . [,] SB 483 . . . [,]
AB 1540[,] SB 775[,] AB 124[,] [and] SB 81.”4 He also refers to a

4 Assembly Bill No. 256 (2021–2022 Reg. Sess.) amended the California
Racial Justice Act of 2020 to authorize the prosecution of writ of habeas
corpus or filing of a motion under section 1473.4 for defendants who can
prove they were convicted or sentenced based on their “race, ethnicity, or
national origin” in cases where judgment was entered prior to January 1,
2021. (Stats. 2022, ch. 739, §§ 2, 3, eff. Jan. 1, 2023.)
Assembly Bill No. 960 (2021–2022 Reg. Sess.) amended the procedures
as to compassionate release requests from the Department of Corrections and
Rehabilitation of prisoners who are terminally ill or permanently medically
incapacitated. (Stats. 2022, Ch. 744, §§ 1–3, eff. Jan. 1, 2023.)

Senate Bill No. 467 (2021–2022 Reg. Sess.) amended section 1473 to
allow a defendant to prosecute a habeas petition if false evidence was
introduced at a hearing or trial; new evidence exists; or “[a] significant
dispute has emerged or further developed in the petitioner’s favor regarding

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“U.S. Supreme Court” ruling, which case name he cannot recall, stating “that
enhancements can-not [sic] supersede . . . the base-term . . . .” Defendant
therefore requests “new appointment of counsel.”
With the exception of the claim based on Senate Bill No. 7755,
defendant’s assertions challenge the original judgment and sentence on

expert medical, scientific, or forensic testimony . . . .” (Stats. 2022, Ch. 982,
§§ 1, 1.5, eff. Jan. 1, 2023.)
Senate Bill No. 483 (2021–2022 Reg. Sess.) added section 1171.1 to the
Penal Code, later renumbered as section 1172.75, which provides that “[a]ny
sentence enhancement that was imposed prior to January 1, 2020, pursuant
to subdivision (b) of Section 667.5, except for any enhancement imposed for a
prior conviction for a sexually violent offense . . . is legally invalid.” (Stats.
2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12, eff. June 30, 2022.)
Assembly Bill 1540 (2021–2022 Reg. Sess.) moved the recall and
resentencing provisions of section 1170, subdivision (d)(1) to newly added
section 1170.03 and clarified the standards a trial court must employ when
considering a Department of Corrections and Rehabilitation recommendation
to recall and resentence a defendant. (Stats. 2021, ch. 719, §§ 1−2, 4, eff.
Jan. 1, 2022.)
Senate Bill No. 775 (2021–2022 Reg. Sess.) among other changes
expanded former section 1170.95’s provisions to include persons convicted of
attempted murder and manslaughter. (Stats. 2021, ch. 551, §§ 1, 2, eff. Jan.
1, 2022.)
Assembly Bill No. 124 (2021–2022 Reg. Sess.) amended section 1170 by
creating a presumption in favor of the lower term where specified
circumstances were “contributing factor[s] in the commission of the offense,”
unless the trial court finds that “the aggravating circumstances outweigh the
mitigating circumstances that imposition of the lower term would be contrary
to the interests of justice.” (Stats. 2021, ch. 695, §§ 5–6, eff. Jan. 1, 2022.)
Senate Bill No. 81 (2021–2022 Reg. Sess.) amended section 1385 in
various respects to alter a trial court’s discretion to dismiss enhancements in
the interest of justice. (Stats. 2021, ch. 721, § 1, eff. Jan. 1, 2022.)
5 Which is patently inapplicable here, because it addresses individuals
convicted of attempted murder or manslaughter, and defendant was not
convicted of either. (Stats. 2021, ch. 551, §§ 1, 2, eff. Jan. 1, 2022.)

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grounds unrelated to his eligibility for relief under section 1172.6. They are
thus not cognizable on appeal from an order denying relief under that
statute. (See People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [section 1172.6
“does not permit a petitioner to establish eligibility on the basis of alleged
trial error”]; People v. Farfan (2021) 71 Cal.App.5th 942, 947 [“The mere
filing of a section [1172.6] petition does not afford the petitioner a new
opportunity to raise claims of trial error”].)
Even if the issues were cognizable, to the extent they assert ineffective
assistance of appellate counsel for filing the Delgadillo brief instead of
motions at defendant’s request, they fail. There is no constitutional right to
effective assistance of counsel in postconviction proceedings or proceedings to
obtain collateral relief from a judgment of conviction. (Delgadillo, supra,
14 Cal.5th at pp. 226–227.)
And even if there were, defendant has not demonstrated that appellate
counsel’s performance fell below an objective standard of reasonableness, or
that any such performance prejudiced him as a result. (See Strickland v.
Washington (1984) 466 U.S. 668, 687–688; People v. Ledesma (1987)
43 Cal.3d 171, 216–218.) Defendant claims that counsel should have filed
motions on his behalf based on a number of “new laws” he lists. As to the
first two (“AB 256” and “AB 960”), he purports to describe, in very conclusory
fashion, what they pertain to. As to the third (“SB 483”), he mentions a
debate he had with counsel about the exact sentence he received, a point that
has nothing to do with the legislation cited. As to the next set of laws,
defendant merely lists them without offering any argument. And finally, he
attempts to cite to “U.S. Supreme Court ruling” but cannot recall the specific
case name. In short, defendant fails to explain how counsel was deficient for
not filing motions based on these authorities, much less establish that the

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motions would have been successful. This conclusory showing falls well short
of establishing inadequate representation. (See People v. Ashmus (1991)
54 Cal.3d 932, 1011, fn. 29 [“ ‘Defendant has the burden of establishing,’ on
the basis of ‘the record on appeal’ and by means of ‘facts, not speculation,’
that ‘counsel rendered ineffective assistance.’ [Citation.] He has not done
so”], abrogated on other grounds in People v. Yeoman (2003) 31 Cal.4th 93,
117; People v. Alvarez (1996) 14 Cal.4th 155, 241, fn. 38 [claim of ineffective
assistance was “ ‘assert[ed] . . . perfunctorily,’ and ‘[w]e deny it in the same
fashion’ ”].)
Finally, we decline counsel’s request that we independently review the
record, which, as counsel recognizes, is not required by law. (Delgadillo,
supra, 14 Cal.5th at p. 232.) There is nothing before us that suggests such an
exercise is necessary. This court reviewed the record on direct appeal from
defendant’s conviction; the trial court reviewed it two more times in
connection with defendant’s two resentencing petitions under section 1172.6;
and his counsel in this appeal has reviewed it thoroughly yet again.
Also, no error appears in the resentencing proceedings or the trial
court’s decision denying resentencing. In finding that defendant’s petitions
did not make a prima facie showing, the trial court noted that defendant
admitted he was the actual killer and that the jury received no instructions
on felony murder or the natural and probable consequences theory. Thus, as
the court’s ruling implied, the jury could not have convicted defendant on
either theory for which it was not instructed, and therefore on a theory of
liability affected by Senate Bill No. 1437. (See People v. Soto (2020)
51 Cal.App.5th 1043, 1055.) The court properly relied on the jury
instructions in reaching its conclusion. (See People v. Lewis (2021) 11 Cal.5th
952, 970 [trial court may rely on the record of conviction to determine

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whether section 1172.6 prima facie showing is made]; People v. Soto, supra,
51 Cal.App.5th at p. 1055 [jury instructions are part of the record of
conviction].) Without a hint of error in the resentencing proceedings or the
trial court’s decision to deny resentencing, we decline to exercise our
discretion to again review the trial record in this case.
DISPOSITION
The trial court’s June 21, 2022 order denying defendant’s section
1172.6 petition is affirmed.

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 _________________________
Richman, J.

We concur:

_________________________
Stewart, P.J.

_________________________
Markman, J. *

People v. Cruz (A165989)

*Superior Court of Alameda County, Judge Michael Markman, sitting as assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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