Filed 1/6/20 P. v. Reyes CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOAQUIN VERA REYES,

Defendant and Appellant.

E073389

(Super.Ct.No. CR32970)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury found defendant and appellant Joaquin Vera Reyes guilty of second degree murder. (Pen. Code, § 187, count 1.) It also found that he personally used a deadly weapon (an automobile) in the commission of the offense, within the meaning of former section 12022, subdivision (b). A trial court sentenced him to a term of 16 years to life in state prison, consisting of 15 years to life on count 1, plus a consecutive one year on the enhancement.

Defendant appealed his conviction, and this court affirmed the judgment. (People v. Reyes (Dec. 30, 1991, E007934) [nonpub. opn.].)

On September 30, 2018, the Governor signed Senate Bill No. 1437, which became effective on January 1, 2019. “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.’ ” (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Senate Bill No. 1437 added section 1170.95, “which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.” (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417.)

On April 3, 2019, defendant filed a petition pursuant to section 1170.95, alleging that he could not now be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019.

The court held a hearing on the petition on May 31, 2019. Defendant was not present but was represented by counsel. Referring to the appellate opinion, the prosecutor informed the court that defendant was the actual killer in this case, since he accelerated his vehicle and ran over a victim riding a motorcycle. The court denied the petition.

Defendant filed a notice of appeal, in propria persona, appealing the denial of the section 1170.95 petition. We affirm.

ANALYSIS

Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and identifying two potential arguable issues: (1) whether the court erred by denying defendant’s section 1170.95 petition; and (2) whether the court prejudicially erred by conducting the hearing on the section 1170.95 petition outside of defendant’s presence and without a proper waiver. Counsel has also requested this court to undertake a review of the entire record.

We offered the defendant an opportunity to file a personal supplemental brief, which he has not done.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.