Filed 7 / 24 / 24 P. v. Cardenas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered 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. LUIS ALBERTO CARDENAS,
Defendant and Appellant. G062354
(Super. Ct. No. 03CF1076)

O P I N I O N

Appeal from a n order of the Superior Court of Orange County, Kazuharu Makino, Judge. Affirmed. Request for judicial notice denied.

Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 In 1995 , Benjamin Gallardo was shot and killed by a group of rival gang members

. In 2004, a jury found Luis Alberto Cardenas guilty of
murder and found true a gang allegation. In 2022, Cardenas filed a petition seeking to vacate his murder conviction under former Penal Code section 1170.95 (now Pen. Code, § 1172.6)

. 1 In 2023, after presiding over an evidentiary hearing , the trial court denied the section 1172.6 petition.

In this appeal , a ppointed appellate c ounsel filed a brief raising no arguable issues. (See People v. Delgadillo (2022) 14 Cal.5th 216, 230 ( Delgadillo ) ; People v. Wende (1979) 25 Cal.3d 436 ( Wende ) .) Cardenas later file d a supplemental brief on his own behalf.

In the interests of justice, t his court has independent ly review ed the record and found no arguable issues. (See Delgadillo , supra , 14 Cal.5th at p. 230 [ “ if the appellate court wishes, it may also exercise its discretion to conduct its own independent review of the record in the interest of justice ” ].)

W e will briefly address the legal issues Cardenas raises in his supplemental brief . We affirm the order of the trial court.

I FACTS AND PROCEDURAL BACKGROUND On October 19, 1995 , Juan L. (Juan) lived in his home on Grant Street in Santa Ana

. Juan was 20 years old, and an associate member of a
g ang aligned with the Grant Street gang

. At th is time, the Grant S treet gang had a n ongoing rivalry with the Eastside gang , which frequently involved the use of firearms to shoot at each other

. In fact, Juan ’ s house had been shot up

1 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10); all further undesignated statutory references are to the Penal Code

.3

several times. Cardenas, an Eastside gang member, lived about a block away in Eastside territory.

At about 7:00 p.m., Juan was outside of his home with a fellow

gang associate , George S., and two female s

. A group of three to f ive young males were seen walking in the street corner , about 140 feet away from the
h ome

. T he young men were wearing dark , baggy clothing and carrying gu n s

. The guns were pointed down , and the young men were walking together very slowly

. A witness described the grou p ’ s behavior as “ unusual

-- it ’ s kind of like, I don ’ t know if you have cats. But usually if a cat is trying to hunt a bird, they pose a little bit. It was kind of like they were walking like that

. ”
Juan saw the young men at the corner

. He was concerned that the young

men were enemies there to shoot at him , and Juan “ proceeded to tell everybody, let ’ s go [to] the backyard. ”

A pickup truck with two men inside drove up to the corner where the other men were standing. Numerous shots were fired from the truck and from the group at the corner

. Juan was hit on his left side and fell to the ground . He said, “ I ’ ve been shot. ” G allardo came out of the house. He was a Grant Street gang member who had recently been acquitted of killing an Eastside gang member

. Gallardo was shot in the head and died

. A witness
said she heard someone from the group say after the shooting, “ We got them. ”

The truck sped off and a neighbor who had known Car de nas since he was a child saw Cardenas a nd two other males running from the area of the shooting. The neighbor saw Cardenas lift up his shirt and put a chrome,
semi

- automatic pistol in his waistband. The neighbor saw the group run to Cardenas ’ home and quickly emerge after changing clothes. One of the females who was outside of Juan ’ s home at the time of the shooting, later4

identified Cardenas as one of the shooters from a photographic lineup.

Court Proceedings

In 2003, a bout eight years after the shooting, t he prosecution filed an information charging Cardenas with murder . The information alleged Cardenas personally used a weapon, and the crime was committed for the benefit of the Eastside criminal street gang.

In 2004, the matter went to trial. The neighbor who identified Cardenas to the police testified at the trial, but she denied having previously identified Cardenas. The court instructed the jury on a theory of direct aiding and abetting, as well as a natural and probable consequences theory. The jury convicted Cardenas of murder and found true the gang allegation
but found the firearm allegation not true. The court imposed a sentence of 25 years to life , plus two years for the gang enhancement. On appeal, this court
struck the two

- year term for the gang enhancement, but otherwise affirmed the conviction and sentence. ( See People v. Cardenas (June 28, 2005, G034110 ) [nonpub. opn.].)

In 2022, Cardenas filed a section 1172.6 petition

. The prosecution conceded Cardenas made the requisite “ prima facie showing and
an order to show cause should be issued. ” Prior to an evidentiary hearing, Cardenas was appointed counsel

. At the hearing, Cardenas called a former gang member a s a n ex pert witness. When asked how gangs handle guns after a shooting, he said , “ U sually the person who actually does the s hooting will hand the gun off to someone who had not s hot so that the person who did the actual shooting isn ’ t c aught with a weapon. ”

At the conclusion of the hearing, the trial court found that5

evidence “ showed the defendant is a part of this group that went to this
location. ” The court s aid this was a planned “ shooting of a rival gang. ”

The trial court found Cardenas “ being there with his gang members, it ’ s beneficial to the other participants in the shooting because he ’ s basically another set of eyes. ” The court said, “ A nd maybe he would be there also to take t he gun after the shooting is done. [¶] B ut this is clearly a joint venture planned b y a ll of them together. T hey are jointly participating. And they jointly leave. T hey change their appearance a fterwards. A nd they do so together. ” The court noted, “ C ardenas ’ s participation, even though the j ury could not find beyond a reasonable doubt that he u sed the gun, his participation is no different in terms o f his intent and what he and the other two planned to d o. ”

The trial court said, “ S o the petition is denied. T he conviction will s tand as it was previously . . . d etermined by the jury. [¶] A nd, you know, just as a side note, I think it w ould have been perfectly appropriate. I agree with [defense counsel ’ s] view that a 20

- year senten ce would have been

m ore than sufficient for what happened in this case. B ut h e got convicted on a charge where the requirement by law i s he ’ s sentenced to 25 years to life. ”

After the hearing, Cardenas ’ s trial counsel filed a notice of appeal. Appointed appellate counsel filed a n opening brief consistent with
the procedures outlined in Delgadillo , supra , 14 Cal.5th 216 , and Wende , supra, 25 Cal.3d 436

. 2 Appellate counsel noted two issues counsel had

2 Cardenas filed a motion asking this court to take judicial notice of the reporter ’ s and clerk ’ s transcripts from the original appeal ( People v. Cardenas , supra , G034110 ) . But those 2004 trial records were lodged in the trial court and are already part of the record on appeal. Thus, the request for judicial notice is denied.6

considered, but did not argue within the brief :

“ 1. The superior court ruled that the evidence in the trial transcripts proved beyond a reasonable doubt that Cardenas was guilty of
murder under the current versions of sections 188 and 189. [Citation.] Was this ruling supported by substantial evidence?

. . .

“ 2. After Cardenas ’ s original trial, the California Supreme Court
decided People v. Sanchez (2016) 63 Cal.4th 665, which held that when an expert relates case
- specific hearsay and treats those statements as true to support the expert ’ s opinion, those statements are hearsay. ( Id . at p. 684.) Cardenas objected to several portions of the gang expert ’ s testimony as hearsay, and the trial court overruled some of those objections. [Citat ions.] Were these rulings correct, and if not, was the error prejudicial? ”

Cardenas later filed a supplemental brief on his own behalf raising several related issues.

I I DISCUSSION
W hen a defendant ’ s appointed appellate counsel identif ies no arguable issues on appeal , a n appellate court may independently review the record for arguable issues. ( Delgadillo , supra , 14 Cal.5th at p. 230; 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 potentia l for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant,7

the result will either be a reversal or a modification of the judgment. ” ( People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

I f a defendant files his own supplemental brief , the “ opinion must reflect the contentions and the reasons that they fail. ” ( People v. Kelly (2006) 40 Cal.4th 106, 120.) However, a “ decision does not require an extended discussion of legal principles. [Citation.] Moreover, a recitation of each of the defendant ’ s assertions will not be necessary in all cases; the purposes of the constitutional requirement [for a written decision] may in some circumstances be satisfied by a summary description of the contentions made
and the reasons they fail. ” ( Id. at p. 121.)

Here, we have reviewed the record on appeal. We agree with counsel ’ s analysis that there are no “ arguable issues , ” including the two issues identified and rejected by counsel. That is, we find substantial evidence to support the trial court ’ s ruling , and we do not find that the trial
court abused its discretion in its hearsay rulings concerning gang expert testimony

. (See People v. Sanchez , supra , 63 Cal.4th at p. 684.) Thus, we affirm the trial court ’ s denial of Cardenas ’ s section 1172.6 petition.

Cardenas does not appear to dispute the trial court ’ s conclusion that he was not entitled to resentencing relief under section 1172.6. Instead, Cardenas makes a few related claims that we will briefly address.

Cardenas argues that this court should stay the proceeding so that he can file various claim s of alleged racial discrimination at his trial under the California Racial Justice Act (CRJA) . (§ 745.) For instance , Cardenas contends that a witness ’ s trial testimony c ompari ng his actions before the shooting to the action s of a cat hunting a bird established racial prejudice. However, we are not going to analyze th ese alleged issue s because8

they are not cognizable (reviewable ) claim s in an appeal from an order denying a section 1172.6 petition. ( See , e.g., People v. Strong ( 2022) 13 Cal.5th 698, 714

– 715 [ recognizing that a defendant may pursue other avenues of relief independent of a section 1172.6 petition].)

Cardenas also argues that he is entitled to relief due to a recent change to the law concerning the trying of a gang enhancement

. (See § 186.22

. ) But again , we are not going to analyze th is issue because it is not cognizable in an appeal from an order denying a section 1172.6 petition. (See , e.g., People v. Burgos (2024) 16 Cal.5th 1 [amendment to section 186.22 allowing the defense to request a bifurcated trial on a gang enhancement did not apply retroactively ].)

Cardenas also ar gues that based on the trial court ’ s comments regarding the length of his prison sentenc e (25 years to life) , and the fact that
he was 17 years old at the time the murder was committed, that this court should remand the matter for resentencing. But once again, Cardenas ’ s argument does not challenge the legal basis of the trial court ’ s denial of his section 1172.6 petition, so it is beyond the scope of our review. 3

Finally, Cardenas argu es : “ In the appellant ’ s opening brief,

a ppointed counsel attempts to apparently abandon appellant during these proceedings. ” We disagree.

In Wende , the Supreme Court “‘ approved a modified procedure to

ensure an indigent criminal defendant ’ s right to effective assistance of
counsel. ’” ( Delgadillo , supra , 1 4 Cal.5th at p. 225 , italics added .) “ As a

3 “ A person who was convicted of a controlling offense that was commi tted when the person was 25 years of age or younger and for which the sentence is a life term of 25 years to life shall be eligible for release on parole at a youth offender parole hearing during the person ’ s 25th year of incarceration. ” ( § 3051 , subd. (b )(3).)9

general matter, where appointed appellate counsel is unable to find viable issues to raise on appeal, Fourteenth Amendment principles of due process and equal protection require reviewing cour ts to independently examine the record for any arguable issue on appeal from a defendant ’ s ‘ first appeal as a matter of right. ’” ( People v. Vera (2023) 97 Cal.App.5th Supp. 10 , 21, citing Anders v. California (1967) 386 U.S. 738 , 743

– 745 ( Anders ) ; Wende , supra , 25 Cal.3d at pp. 441

– 442 .) “ Specifically, Wende provides at least two tiers of
review and ‘ ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the

case. ’” ( De lgadillo , at p. 226 .)

“ However, the procedures set out in Anders and Wende do not apply to an appeal from the denial of postconviction relief, even if the defendant has a state

- created right to the appointment of counsel for that appeal. ” ( Delgadillo , supra , 14 Cal.5th at p. 226

. )

Here, in the interests of justice , w e have con ducted a n additional review of the record , and the issues specifically identified by appointed counsel, and we have similarly identified no “ arguable issue on appeal

. ” ( See People v. Johnson , supra , 123 Cal.App.3d at p. 109.)

In sum, C ardenas has not challenged the trial court ’ s ruling regarding the section 1172.6 petition in his supplemental brief . Thus, we affirm the order of the court denying the section 1172.6 petition.10 III DISPOSITION
The trial court ’ s order denying Cardenas ’ s section 117 2.6 petition is affirmed.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

MOTOIKE, J.