Opinion
B322904
03-20-2023
THE PEOPLE, Plaintiff and Respondent, v. VICTOR CHAVIRA, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
(Super. Ct. No. 2008032478) (Ventura County), Patricia Murphy, Judge
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
YEGAN, J.
Victor Chavira appeals the order of the trial court denying his petition for resentencing pursuant to Penal Code former section 1170.95 (now § 1172.6). We appointed counsel to represent appellant on appeal. After an examination of the record, counsel filed an opening brief raising no issues and requesting that we follow the procedures set forth in People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Appellant filed his own supplemental brief, in propria persona. We affirm.
All further statutory references are to the Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
Facts and Procedural Background
The following facts are drawn from this court's unpublished decision in appellant's direct appeal from his conviction. (People v. Chavira (Dec. 23, 2014, B247595) [nonpub. opn.].)
Appellant, a drug middleman, shot Albino Ramirez in front of Ramirez's pregnant wife and son. Appellant had told Ramirez that he could buy two pounds of methamphetamine for $30,000 and directed Ramirez to pick him up at Wal-Mart. It was a ruse to murder and rob Ramirez. Ramirez got the money and drove to Wal-Mart with his wife, Celia Ramirez, and his son, Anthony.
Celia Ramirez and three-year old Anthony were in the back seat of the car when appellant killed Ramirez. Appellant also threatened to shoot Celia and Anthony. He ordered Celia to turn over the money and not to call 911 for 20 minutes.
Appellant was arrested that day and had $24,000 in his sock and $2,875 in his wallet. In a Miranda interview (Miranda v. Arizona (1966) 384 U.S. 436), appellant admitted shooting Ramirez and said, "'I was just cleaning up the city.'"
Appellant was convicted by jury of first degree murder with two special circumstances findings that he committed the murder in the commission of a robbery and while lying in wait (count 1; §§ 187, subd. (a); 190.2, subd. (a)(17)(A); 190.2, subd. (a)(15)). The jury also convicted appellant of second degree robbery (count 2; § 211), two counts of exhibiting a firearm in the presence of another person (counts 3-4; § 417, subd. (b)), and dissuading a witness by force or threat (count 5; § 136.1, subd. (c)(1)). On counts 1, 3, and 5, the jury found that appellant personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). The trial court sentenced appellant to a determinate term of eight years eight months state prison plus 100 years to life, plus two indeterminate terms of life without the possibility of parole.
On appeal from the judgment of conviction, we modified appellant's sentence but affirmed the judgment in all other respects.
In April 2022, appellant filed, in propria persona, a form petition for resentencing pursuant to section 1172.6.
After appointment of counsel and an opportunity for the parties to provide briefing, the trial court summarily denied the petition. The trial court's ruling stated, in pertinent part, "the record contains undisputed facts that refute the allegations in the petition. The [appellant] was charged with willful, unlawful murder with malice [a]forethought as the actual shooter. His conviction was based on his own proven intent to rob and kill the victim after taking him by surprise and was not based on intent imputed to him by the actions or intent of another. By finding true the special circumstance of lying in wait, the jury specifically found that [appellant] intentionally killed the victim after he concealed his intent or purpose, after he waited and watched for an opportunity to strike and after executing a surprise attack. As to the crime of murder and the special circumstances, the jury was not instructed on the law of aiding and abetting, conspiracy, or natural and probable consequences as theories of guilt. The verdicts unambiguously reflect that [appellant's] culpability for the crime was commensurate with his own actions and intent."
Discussion
Because the instant appeal is not from appellant's conviction, he is not entitled to our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 or its federal constitutional counterpart, Anders v. California (1967) 386 U.S. 738. (People v. Delgadillo (2022) 14 Cal.5th 216, 221222, 224, 230; see People v. Kelly (2006) 40 Cal.4th 106, 119 [independent judicial review mandated by Anders applies only to first appeal as of right]; Serrano, supra, 211 Cal.App.4th at p. 503.) However, he is entitled to appellate consideration of any contentions raised in his supplemental brief. (See Serrano, at p. 503.)
In his supplemental brief, appellant raises the same contention he raised in his petition for resentencing, that he was prosecuted under a theory of felony murder under which malice is imputed based solely on his participation in the crime, and that he could not presently be convicted of murder because of changes made to sections 188 and 189. As the trial court correctly concluded, appellant's crimes do not qualify for the requested relief. Accordingly, his contention is meritless.
Disposition
The order denying appellant's petition for resentencing pursuant to section 1172.6 is affirmed.
We concur: GILBERT, P. J. BALTODANO, J.