Filed 6/24/21 P. v. Castillo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
ABEL CASTILLO , Defendant and Appellant. G05 9693 (Super. Ct. No. 02 CF 0796 )

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Maria D.
Hernandez , Judge. Affirmed.

Joshua L. Siegel , unde r appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.2 After a gang

- related intersection incident in which the passengers of one car fired upon the passengers of another, a ppellant Abel Castillo wa s convicted of two first degree murders. He was convicted as one of the two shooters. Special circumstances were found to be true, establishing that the killing was intentional , appellant was an active participant , and it was done to further the interest s of his criminal street gang

. (Pen

. Code , §§ 190.2 , subd. (a)(21) and 190.2 , subd. (a)(22).)

In 2019, a ppellant filed a petition seeking to vacate h is murder conviction s pursuant to subsequently

- enacted Penal Code section 1170.95. That petition was d enied by the trial court on the basis that there was no aiding and abetting and there w as no felony murder

. The statute provides relief only for petitioners convicted of murder under a felony murder or natural and probable consequences theory. Since the information filed against petitioner was not based upon either of those theories and neither was ever mentioned to the jury , the court ruled he was not entitled to relief.

Appellant appealed, and we appointed counsel to represent h im . Counsel
filed a bri ef which set forth the facts of the crime itself and the court’s ruling on

a ppellant’s petition. Counsel did not argue against his client but advised us he could find no issues to argue on appellant’s behalf. Appellant was invited to express h is own obje ctions to the proceedings against him but did not do so. We reconsidered the application of Penal Code section 1170.95 to h is case and have also scoured the record for any other mistakes, as we are required to do when appellate counsel reports an
inabilit y to find an appellate issue. ( People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon which a ppellant would prevail, but only issues upon which he might possibly prevail.

We have examined the record and found no arguable issue. Appellant does not fall within the ambit of the statute because the prosecution was based not on a felony murder theory or a natural and probable consequences theory, but upon personal malice aforethought in a crime in which he wa s an active participant and intended to kill

. T here3

is no relief available under Penal Code section 1170.95 for someone who se conviction is
based on those findings

.

To his credit, very thorough appellate counsel went further than the denial of appellan t’s petition in trying to find an arguable appellate issue. He considered the possibility it might have been error for the court below to deny the petition without appointing counsel for appellant. And it may have been. The statute says, “The court
shal l review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.” ( Pen

. Code , § 1170.95 , subd. ( c ).)

That language is not clear as far as when the statutory right to counsel
attaches. Some have argued the mere allegation of circumstances which bring the case
within the rubrics of Penal Code section 1170.95 requires a he aring. Others believe the court can look at the record of conviction to decide whether a hearing is required.

But we need not determine whether failure to appoint counsel was error in this case because the issue has since been reviewed both by appointed appellate counsel and this court, and both have determined there was n o prima facie case for application of
the statute. Had counsel been appointed below, he/she could have done no more than we have done, and it would be an idle act to send the matter bac k now to appoint counsel to consider making an argument appellate counsel and this court have concluded to be legally insufficient.

We have been unable to find any other issues that might be argued in

a ppellant’s behalf. Our review is limited to issues p ertaining to his Penal Code section4

1170.95 petition, and we can find n othing there that might lead to reversal

. T he judgment
is therefore affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS , J.