Filed 1/16/20 P. v. Solis 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

ALLAN SOLIS,

Defendant and Appellant.

C089326

(Super. Ct. No. 04F07362)

“In 2018, the Legislature enacted and the Governor signed Senate Bill [No.] 1437, effective January 1, 2019. (Stats. 2018, ch. 1015.) An uncodified section of the law expressing the Legislature’s findings and declarations states the law was ‘necessary 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.’ (Id., § 1, subd. (f).)” (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275 (Gooden).)

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) “restricted the application of the felony-murder rule and the natural and probable consequences doctrine, as applied to murder, by amending Penal Code” sections 188 and 189. (Gooden, supra, 42 Cal.App.5th at p. 276.) And, pertinent here, Senate Bill 1437 added section 1170.95. “Section 1170.95 permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the murder conviction and resentence the person on any remaining counts if the following conditions are met: ‘(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of [the] changes to [s]ection 188 or 189 made effective January 1, 2019.’ (Id., subd. (a).) [¶] If the petitioner makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and, absent a waiver and stipulation by the parties, hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner. (§ 1170.95, subds. (c) & (d)(1).)” (Gooden, supra, 42 Cal.App.5th at pp. 276-277.)

Most of the background facts are taken from People v. Solis (Dec. 14, 2007, C053493 [nonpub. opn.] (Solis)). On August 12, 2004, Ruby Pena was found dead in defendant’s apartment. She had been stabbed twice in the neck. Defendant and Pena had been dating each other for years when the relationship started to show signs of deterioration in July 2004. On August 12, 2004, Pena came to defendant’s apartment and they started arguing. They argued for about 15 minutes. Then, the fighting turned physical.

Defendant claimed Pena got mad when he told her he was ending the relationship. She started swinging at him and scratching his face. Then, she grabbed a knife from the kitchen counter. He claimed, he was scared because he thought she was going to stab him. They wrestled for the knife, “both tryin’ to stab each other.” As they wrestled over the knife, they tripped on an air mattress and he stabbed Pena in the neck.

After a court trial, defendant was convicted of first degree murder (§ 187, subd. (a)) and the trial court found true the allegation defendant personally used a deadly and dangerous weapon in the commission of the offense (§ 12022, subd. (b)(1)). Defendant was sentenced to state prison for a term of 25 years to life with the possibility of parole, with an additional consecutive one year on the personal use enhancement.

On January 22, 2019, defendant filed a section 1170.95 petition.

On February 25, 2019, the trial court denied the petition in a written order. After quoting from Solis, the trial court explained its reasons for denying the petition: “[D]efendant himself, in his own testimony, admitted that he had killed the victim. The actual killer is not eligible for . . . [section] 1170.95 relief.”

Defendant appeals from this order.

Appointed counsel for defendant asked this court independently to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

Whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal from an order denying a petition brought pursuant to section 1170.95 is an open question. Our Supreme Court has not spoken. The Anders/Wende procedures address appointed counsel’s representation of an indigent criminal defendant in the first appeal as a matter of right and courts have been loath to expand their application to other proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551 [95 L.Ed.2d 539]; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th 952; People v. Martinez (2016) 246 Cal.App.4th 1226; People v. Kisling (2015) 239 Cal.App.4th 288; People v. Serrano (2012) 211 Cal.App.4th 496.) Nonetheless, in the absence of Supreme Court authority to the contrary, we will adhere to Wende in the present case, where counsel has already undertaken to comply with Wende requirements and defendant has been afforded an opportunity to file a supplemental brief.

Having undertaken an examination of the record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment (order) is affirmed.

/s/

Butz, Acting P. J.

We concur:

/s/

Mauro, J.

/s/

Krause, J.