Filed 12/4/19 P. v. Solano 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

SERGIO MORALES SOLANO,

Defendant and Appellant.

E073255

(Super.Ct.No. SWF1205432)

OPINION

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

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury found defendant and appellant Sergio Morales Solano guilty of second degree murder (Pen. Code, § 187, subd. (a), count 1), driving under the influence of alcohol and causing bodily injury to another person (Veh. Code, § 23153, subd. (a), count 2); driving with a blood-alcohol level of 0.08 percent or more and causing bodily injury to another person (Veh. Code, § 23153, subd. (b), count 3), and failing to stay at the scene of a car accident that resulted in a death (Veh. Code, § 20001, subd. (a), count 4).

Defendant appealed his convictions. This court modified his sentence, but otherwise affirmed the judgment in a prior opinion.

On May 28, 2019, defendant filed a petition for resentencing, pursuant to section 1170.95, claiming that he was eligible for relief because “he was not the killer committing the offense with a proven act of malice.”

The court held a hearing on June 14, 2019. The prosecutor argued that defendant was the actual killer, in that he was the only defendant in the case. Referencing this court’s prior opinion, the prosecutor asserted that defendant was driving drunk, went through a red light, and hit the victim’s car, thereby killing her. Defense counsel objected for the record, but agreed with the prosecutor’s rendition of the appellate opinion. The court summarily denied the petition because defendant was the actual killer and was not eligible for relief under section 1170.95.

Defendant appealed the denial of the section 1170.95 petition. We affirm.

FACTUAL BACKGROUND

On September 30, 2012, at approximately 2:00 p.m. in Hemet, defendant was driving eastbound on Florida Avenue. Also in Hemet, Marissa was driving northbound on State Street, and Alberto was driving northbound on State Street. Defendant drove through a red light at the intersection of Florida Avenue and State Street. Defendant’s truck hit the driver’s side of the car being driven by Marissa. Marissa’s car then struck the car being driven by Alberto. After the crash, defendant exited his truck, looked in the driver’s window of Marissa’s car, and then walked away.

Approximately 15 minutes after the collision, defendant was found in a parking lot behind a store. Police arrested him. Marissa died. Alberto was injured. A blood sample taken from defendant at 3:34 p.m. reflected a blood-alcohol level of 0.25 percent.

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 a few potential arguable issues: (1) whether defendant was properly denied his statutory right to “file and serve a reply within 30 days after the prosecutor response is served”; (2) whether defendant was denied the right to consult with counsel prior to the denial of the petition; and (3) whether defendant was entitled to a reversal, in order to enable the judge who sentenced him to rule on the petition. 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

Acting P. J.

We concur:

MILLER

J.

SLOUGH

J.