Opinion
B301258
05-18-2020
THE PEOPLE, Plaintiff and Respondent, v. HIPOLITO RAYOS PARRA, Defendant and Appellant.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA101838) APPEAL from an order of the Superior Court of Los Angeles County. Mike Camacho, Judge. Affirmed. Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
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Defendant and appellant Hipolito Rayos Parra appeals from the denial of his petition for resentencing pursuant to Penal Code section 1170.95. We affirm.
Defendant was charged, along with a codefendant, with one count of murder (Pen. Code, § 187, subd. (a)). Defendant and his codefendant (who is not a party to this appeal) are half brothers and they were accused of murdering the ex-girlfriend of the codefendant. Defendants were tried jointly before separate juries. The jury found defendant guilty of second degree murder. Defendant was sentenced to state prison for a term of 15 years to life.
This court affirmed defendant's conviction in an unpublished opinion (People v. Parra (Apr. 12, 2017, B267163) [nonpub. opn.]).
In 2018, Penal Code section 1170.95 was enacted as part of the legislative changes effected by Senate Bill 1437. "Senate Bill 1437 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).)" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Section 1170.95 became effective on January 1, 2019.
On February 7, 2019, defendant filed a petition in propria persona requesting resentencing pursuant to Penal Code section 1170.95. The district attorney filed written opposition.
The trial court appointed defendant counsel and set the matter for hearing. The court said it would have been proper to summarily deny the petition, but that "out of an abundance of caution and in all fairness to [defendant]," the court decided to give defendant an opportunity to argue the merits.
After entertaining argument, the trial court denied defendant's petition for resentencing. Before ruling, the court explained, "[t]his court had the benefit of presiding over the trial and certainly heard all the evidence. . . . [T]he jury was not instructed on felony murder. The People did not proceed on that theory. . . . The jury was not instructed on the theory of natural and probable consequence. The People did not proceed on that theory as well. So the point being, I think, as a matter of law, the defendant is not entitled to the relief sought." The court further explained that the jury rejected defendant's arguments at trial and found defendant shared his codefendant's intent and was guilty of murder as a direct aider and abettor.
Defendant filed a timely notice of appeal.
We appointed appellate counsel to represent defendant. Defendant's appointed counsel, who was also defendant's counsel on the direct appeal, filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised. The brief included a declaration from counsel that she reviewed the record and sent a letter to defendant explaining her evaluation of the record. Counsel further declared she advised defendant of his right, under Wende, to submit a supplemental brief within 30 days, and forwarded copies of the record to defendant. Defendant has not filed a supplemental brief.
We have examined the entire record and are satisfied that appointed counsel fully complied with her responsibilities in assessing whether any colorable appellate issues exist. We conclude there are no arguable appellate issues. (People v. Kelly (2006) 40 Cal.4th 106; Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The order denying the petition for resentencing is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.