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Filed 11/1 4 /23 P. v. Roman CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or

or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.
ISIDRO PAVON ROMAN,

Defendant and Appellant. A16 5444

(San Mateo County Super. Ct. No. SC034149A )

Isidro Pavon Roman appeals from an order denying his petition for

resentencing pursuant to Penal Code section 1172.6 (all further statutory

reference s are to the Penal Code). His appellate counse l filed an opening

brief informing th is court that he reviewed the record and c ould find no

arguable issues to raise on appeal. Citing People v. Delgadillo (2022) 14

Cal.5th 216 , counsel ask ed us to send his brief to Roman with notice

“informing the defendant of his right to file a supplemental letter or brief and

that if no supplemental letter or brief is filed within 30 days, the court may

dismiss the matter.” ( Id. at pp. 231

- 232.) We so informed Roman , and he

filed a s upplemental brief that is three page s long

. We have evaluated

Roman’s arguments as best we understand them, and we find no issues of2

merit. 1 (See id . at p. 232 [when appellate counsel has found no arguable

issues and the appellant submits a supplemental brief or letter, “the Court of

Appeal is required to evaluate the specific arguments presented in that

brief”].) Accordingly, we shall affirm

.

FACTUAL AND PROCEDURAL BACKGROUND

Underlying Charges, Conviction, Sentence, and Appeal

. On April 12, 1994, Ro man was charged by information with murder of

Jose Manuel Gonzalez, in violation of section 187, subdivision (a). The

information also alleged that Roman had personally used a firearm in the

commission of that crime ( § 12022.5, subd. (a)).

On October 2 4, 1994, a jury found Roman not guilty of first degree

murder, and guilty of second degree murder, and found the personal use of a

firearm allegation true.

Roman was sentenced to 15 years to life for second degree murder, with

a consecutive term of four years for personal use of a firearm enhancement.

This court affirmed the judgment in an opinion filed November 21,

1995. ( People v. Roman (Nov. 21, 1995, A068093) [nonpub. opn.].)

Petition for Resentencing

On January 31, 2022, representing himself, Roman filed a petition for

resentencing under section 1170.95 (since renumbered section 1172.6). 2 The

1 Roman has attached various “ exhibits ” (A through D) to his supplemental brief, and we find them irrelevant . They include a two

- page declaration dated December 9, 2016, purporting to be from counsel who represented him in connection with a petition for DNA testing, and relating to the provi sion of documents to Roman; correspondence from the same
counsel dated March 22, 2011, related to the case file ; a portion of an investigator’s report dated August 29, 2012; a portion of a ballistics report ; and a portion of a sheriff’s report

.

2 A person convicted of murder is eligible to petition for relief when he or she was “convicted of felony murder or murder under the natural and3

district attorney filed an opposition, and Roman, then represented by counsel,

filed a reply. The prosecutio n filed an additional reply brief and request for

judicial notice, including the information, verdict forms, the jury instructions

given at trial, and this court’s opinion on appeal.

The trial court then held a heari ng and denied the petition. The cour t

stated, “in looking at the Information, the jury instructions, and the

convictions, the petitioner was convicted of second degree murder with the

probable consequences doctrine or other theory under which malice is imputed to a person based solely on that perso n’s participation in a crime

, attempted murder under the natural and probable consequences doctrine, or manslaughter .” (§ 1172.6, subd. (a).) An eligible person may file a petition to have that “conviction vacated and to be resentenced on any remaining

c ounts.” ( Ibid .) The petition must include a declaration by the petitioner stating that he or she “could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” ( Id ., subds. (a)(3 ), (b)(1)(A ).)

The petitioner must also (1) declare that “[a] complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequence s doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine” and that “[t]he petitioner was convicted of murder, attem pted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder” (§ 1172.6, subds. (a)(1)

– (2)

, (b)(1)(A)) and (2) provide the superior

court case num ber and year of conviction ( id ., subd. (b)(1)(B)).

“When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition ‘to determine whether the petitioner has made a prima fa cie case for relief.’ [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.” ( People v

. Strong (2022) 13 Cal.5th 698, 708.) But if
“the defendan t has made a prima facie showing of entitlement to relief, ‘the
court shall issue an order to show cause.’ ” ( Ibid .)4

personal use of a firearm. [¶] I don’t have to get into the facts of this case

because in looking at the ju ry instructions that were given here, those

instructions made clear that the petitioner was not convicted under a theory

where malice would be imputed to a person based on that person’s

participation in a crime. He is not a co

- de fe ndant in this case. The re’s no

other charges of robbery or any such charges that would fall under eith er the

felony murder rule or a natural and probable consequences theory. [¶] He is

the only person convicted in this case of murder in the second degree

. . . . He

is the only person, based on the record, that was convicted for murder with

the use of a firearm.” The court stated that Roman’s “claim fails based on the

statute of what is required to show that he would be eligible for such re

sentencing.”

DISCUSSION

We have rev iewed Roman’s supplemental brief and find it difficult to

discern how it relates to the order denying his petition for resentencing

. The substantive portion of the brief is headed, “Defendant’s Grounds In

Support of Motion ” and consists primarily of 10 enumerated short

paragraphs, most one sentence long

, with no analysis or citation to the

record . As best we can tell, these enumerated paragraphs are directed to

Roman’s underlying conviction that was affirmed on appeal by this court in

199 5 , in case number A068093. None of th ese paragraphs has any bearing on

this appeal, which concerns his petition to be resentenced under section

1172.6. 3 The re maining half page of the supplemental brief p urports to

3 For example, p aragraph 1, citing to “A.L.R.” addresses generic issues in jury instructions ; paragraph 2 asserts “innassistance of trial counsel and appellate counsel for failed to investigate and prepare a defence;” paragraphs 4, 5, and 6 assert “innassistance” related to expert witnesses; para g raphs 7 and 8 assert “prosecution misconduct and inass is tance of trial counsel;”5

assert a list of reasons “to review the entitle record and grant

. . . resentence,”

but these short statements are similarly not elucidating. Two statements cite

to non

- compliance with Anders v. California (1967) 386 U.S. 738, the federal

analo g to a Wende appeal, and allege non

- specific “inassistance” of appellate

counsel in “Wende” brief for failing to comply with Anders . Three others

appear to relate to issues that might have been raised in the underlying

direct appeal, asserting without mor e, “sufficient of evidence re 2d degree

murder,” “ prejudice as a result of : prosecut ion misconduct for failed to

disclose (extensive criminal record of [ victim ] )”; and another simply posing

the question “were all relevant less er

- including offenses given?” Even if we

could discern the specific argument s being made, we decline to address them

here because they are not before us on this appeal.

DISPOSITION

The challenged order is affirmed.

paragraph 9 ass erts a conspiracy between prosecution and trial counsel; paragraph 10 asserts “innassistance of counsel” because “no mitigating factors were presented at any time” in trial or on appeal.6 _________________________ Miller, J.

WE CONCUR:

_________________________ Stewart , P.J.

_________________________ Markman, J. *

A165444

, People v. Roman

* Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.