Filed 1/16/20 P. v. Santana CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ALBERT ARIAS SANTANA,

Defendant and Appellant.

G057978

(Super. Ct. No. 14CF2603)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Respondent.

* * *

Generally, a person convicted of murder under a natural and probable consequences theory may petition a trial court to vacate the murder conviction and be resentenced. (Pen. Code, § 1170.95.) Defendant Albert Arias Santana was convicted of conspiracy to commit murder and recently filed a section 1170.95 petition. The trial court denied the petition because Santana was not convicted of murder. Santana filed a notice of appeal from that order and this court appointed appellate counsel.

Counsel filed an opening brief that informed this court that he had found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Counsel notified Santana of his right to file a supplemental brief, but he did not do so.

We affirm the trial court’s order.

I

FACTS AND PROCEDURAL BACKGROUND

We provide the following “brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.” (People v. Kelly (2006) 40 Cal.4th 106, 109-110.)

On July 22, 2014, Santana was a driver during a drive-by shooting. The prosecution charged Santana and the shooter with attempted murder, conspiracy to commit murder, active gang participation, and related gang and firearm enhancements. A jury found Santana guilty of conspiracy to commit murder, and active participation in a criminal street gang. The jury also found true the enhancements. The court initially sentenced Santana to a term of 50 years to life; however, in 2018, the court exercised its discretion and dismissed a firearm sentencing enhancement, resulting in a reduced sentence of 25 years to life.

On May 1, 2019, Santana filed a petition for resentencing under the provisions of section 1170.95. The court summarily denied the petition, explaining that: “The petition does not set forth a prima face [sic] case for relief under the statute. A review of the court’s records indicates defendant is not eligible for relief under the statute because the defendant does not stand convicted of murder . . . .”

II

DISCUSSION

When appointed counsel is unable to identify any arguable issues on appeal, we independently review the record. (Wende, supra, 25 Cal.3d at pp. 441-442.) Generally, “an arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel’s professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

Section 1170.95 permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the court to vacate the conviction and resentence the person on any remaining counts. Section 1170.95 does not provide relief for any convictions other than murder. (§ 187; see People v. Munoz (2019) 39 Cal.App.5th 738, 753, review granted Nov. 26, 2019, S258234; see also People v. Lopez (2019) 38 Cal.App.5th 1087, 1092-1093, review granted Nov. 13, 2019, S258175.)

Here, the jury found Santana guilty of conspiracy to commit murder, a violation of section 182, subdivision (a)(1). This verdict renders Santana ineligible relief under the provisions of section 1170.95. We have independently reviewed the record and we agree with counsel’s analysis that there are no arguable issues on appeal.

III

DISPOSITION

The order of the trial court is affirmed.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

THOMPSON, J.