Filed 10/13/23 P. v. Cingcon 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
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THE PEOPLE, C098296
Plaintiff and Respondent, (Super. Ct. No. 15F00349)
v.
DAVID RICHARD CINGCON,
Defendant and Appellant.
In 2016, a jury found defendant David Richard Cingcon guilty of attempted
murder, assault with a firearm, and unlawful possession of a firearm by a felon. The jury
also found true various firearm and great bodily injury enhancements, including that
defendant personally and intentionally discharged a firearm causing great bodily injury.
Finally, in a bifurcated proceeding, the trial court found defendant had three prior serious
felony convictions and prior strikes. (People v. Cingcon (Jul. 18, 2017, C083020)
[nonpub. opn.].) Defendant appealed, and we modified the judgment to correct certain
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fines and the restitution award, as well as to order correction of errors in the abstract of
judgment. We otherwise affirmed the judgment in an unpublished decision. (Ibid.)
On remand and in response to defendant’s petition for writ of habeas corpus, the
trial court clarified defendant’s prison sentence for the attempted murder count, noting
defendant had been sentenced to 44 years to life for the attempted murder, plus 25 years
to life for the Penal Code1 section 12022.53, subdivision (d) enhancement, plus two five-
year terms for prior serious felony enhancements. The court made further corrections to
the sentence for counts two and three, which we need not recount here.
On October 12, 2022, defendant filed a petition for resentencing under former
section 1170.95 (now section 1172.6).2 The trial court appointed counsel and briefing
ensued. On February 24, 2023, the trial court held a prima facie hearing and denied
defendant’s petition, finding the jury instructions given did not implicate the legislative
changes. Rather defendant’s jury had been instructed with CALCRIM No. 600, which
required the jury to find defendant intended to kill in order to find him guilty of attempted
murder. Defendant timely appealed.
On August 1, 2023, defendant’s appellate counsel filed a brief raising no arguable
issues under People v. Delgadillo (2022) 14 Cal.5th 216, but requesting we exercise our
discretion to review the entire record for arguable issues on appeal. Appellate counsel
also wrote defendant, explaining she would be filing a Delgadillo brief, and if defendant
failed to file a supplemental brief, his appeal would likely be dismissed.
On August 2, 2023, this court also sent a letter notifying defendant: (1) his
counsel filed an appellate brief stating her review of the record did not identify any
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the
statute. We will refer to section 1172.6 throughout this opinion.
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arguable issues; (2) as a case arising from an order denying postconviction relief,
defendant was not constitutionally entitled to counsel or to an independent review of the
record; and (3) in accordance with the procedures set forth in Delgadillo, defendant had
30 days to file a supplemental brief or letter raising any argument he wanted this court to
consider. We advised defendant that if the court did not receive a letter brief within that
period, “the court may dismiss the appeal as abandoned.”
On August 18, 2023, defendant filed a supplemental brief that we understand to
challenge his original prison sentence, specifically the conduct enhancements imposed
under section 667, subdivision (a)(1). We will affirm the trial court’s order.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on
January 1, 2019, was enacted “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 legislation accomplished this
by amending sections 188 and 189 and adding section 1172.6 to the Penal Code. Senate
Bill No. 775 (2020-2021 Reg. Sess.), effective January 1, 2022 (Cal. Const. art. IV, § 8,
subd. (c)), extended the procedure of section 1172.6 to individuals convicted of attempted
murder (Stats. 2021, ch. 551, § 2).
“Senate Bill [No.] 1437 relief is unavailable if the defendant was either the actual
killer, acted with the intent to kill, or ‘was a major participant in the underlying felony
and acted with reckless indifference to human life, as described in subdivision (d) of . . .
[s]ection 190.2.’ (Pen. Code., § 189, subd. (e)(3); see § 1172.6, subd. (a).)” (People v.
Strong (2022) 13 Cal.5th 698, 710.)
Here, defendant’s jury was not instructed on the natural and probable
consequences doctrine. Rather, the court instructed the jury with CALCRIM No. 600,
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which required the jury to determine that defendant had intended to kill in order to find
him guilty of attempted murder. Thereafter, the jury determined defendant had
committed attempted murder, thus necessarily determining he had acted with the intent to
kill. This precludes his eligibility for relief as a matter of law. (People v. Strong, supra,
13 Cal.5th at p. 710.) Defendant does not contend otherwise.
Rather, defendant attacks the propriety of the conduct enhancements (§ 667,
subd. (a)(1)) imposed as part of his original sentence. However, this argument
misapprehends the procedural posture of this case. The propriety of defendant’s prior
prison sentence is not cognizable from a denial of defendant’s resentencing petition.
Only the propriety of the trial court’s section 1172.6 determination is properly before us.
(See People v. Strong, supra, 13 Cal.5th at pp. 713-714 [resentencing under § 1172.6
involves “prospective relief from a murder conviction that was presumptively valid at the
time,” not the correction of past errors].) Accordingly, this appeal fails.
DISPOSITION
The trial court’s order denying defendant’s section 1172.6 petition is affirmed.
/s/
ROBIE, J.
We concur:
/s/
EARL, P. J.
/s/
HULL, J.
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