Filed 10/1/24 P. v. Frias CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDRES FRIAS,

Defendant and Appellant.

B336151

Los Angeles County

Super. Ct. No. BA357016-01

APPEAL from an order of the Superior Court of Los 

Angeles County, Kevin Stennis, Judge. Affirmed.

Nancy Gaynor, under appointment by the Court of Appeal, 

for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

——————————
2

Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216

(Delgadillo), we review this appeal of an order denying 

appellant’s petition for resentencing brought under Penal Code1

section 1172.6. We affirm.

BACKGROUND

In 2011, a jury convicted appellant Andres Frias of first 

degree murder and found true that he committed the offense for 

the benefit of a gang and a principal in the crime discharged a 

firearm causing great bodily injury and death. (§§ 187, subd. (a); 

186.22, subd. (b)(1)(C); 12022.53, subd. (d). The trial court 

sentenced Frias to 50 years to life in prison for the murder and 

enhancements.

On May 27, 2022, Frias filed a petition for resentencing 

pursuant to section 11790.95 (now renumbered 1172.6). Frias 

was represented by counsel. The People filed a response, arguing 

Frias was ineligible for relief because the jury was not instructed 

on a theory of liability now invalid under Senate Bill No. 1437

and because he was prosecuted as the actual killer. The jury 

instructions were attached as Exhibit 4 to the People’s response. 

Frias filed a reply, conceding that the jury instructions did not 

assert a now invalid theory of liability, but arguing nonetheless 

that the record of conviction did not show ineligibility for relief as 

a matter of law.

On October 19, 2023, the trial court denied the petition,

finding that the jury instructions and verdicts showed Frias had 

not been prosecuted on a now invalid theory of liability and the 

jury found he was the actual shooter when it found true that he 

1 Undesignated Statutory references are to the Penal Code.
3

had personally discharged a firearm causing death. Frias filed a 

timely notice of appeal.

To provide context only, we recite the facts of the events 

underlying the murder conviction. On April 14, 2008, a male 

rode a bicycle up to victim Brian Maciel as he waited at a bus 

stop with his girlfriend. The bicyclist asked the victim about his 

gang affiliation. When the victim stated the name of his gang, 

the bicyclist shot Maciel in the chest, rode to a nearby truck, put 

the bicycle in the back of the truck, entered the passenger side of 

the truck, flashed a gang sign at a witness to the shooting, and 

left the scene. (People v. Frias (Jan. 8, 2013, B233209) [nonpub. 

opn.],)

On June 7, 2024, we appointed counsel to represent Frias 

on appeal. On August 7, 2024, counsel filed a no-issue brief 

pursuant to People v. Delgadillo. Counsel advised us they had 

told appellant he may file his own supplemental brief within 

30 days. Counsel sent Frias transcripts of the record on appeal 

as well as a copy of the brief.

On August 7, 2024, this court sent Frias notice that a brief 

raising no issues had been filed on his behalf. We advised him he 

had 30 days within which to submit a supplemental brief or letter 

stating any issues he believes we should consider. We also 

advised him that if he did not file a supplemental brief, the

appeal may be dismissed as abandoned.

On September 11, 2024, Frias filed a supplemental brief, in 

which he asks us to conduct an independent review of the record.

He also argues 1) false evidence was used at his trial; 2) the truck 

that appears to be passing by the crime scene in a video shown to 

the jury was not his truck; 3) his counsel ignored his protests that 

the truck in the video was not his; 4) at the preliminary hearing 
4

the victim’s girlfriend never identified him as the shooter; 5) the 

recordings of his admissions in jail were just “locker talk”; 6) the 

eyewitnesses were not reliable; 7) his gang enhancement should 

be stricken under Assembly Bill No. 333; and 8) he is entitled to 

be resentenced under Assembly Bill No. 124 as a youthful 

offender who experienced childhood trauma.

DISCUSSION

Senate Bill No. 1437 (2017–2018 Reg. Sess.) eliminated the 

natural and probable consequences doctrine as a basis of liability 

for murder. It also limited the scope of the felony murder rule. 

(People v. Lewis (2021) 11 Cal.5th 952, 957) (Lewis).) The intent 

of Senate Bill No. 1437 is “to ensure that murder liability is not 

imposed on a person who is not the actual killer, did not act with 

the intent to kill, or was not a major participant in the 

underlying felony who acted with reckless indifference to human 

life.” (Stats. 2018, ch. 1015, § 1, subd. (f); Lewis, at p. 967.) 

Petitions for resentencing under section 1172.6 address 

convictions where a defendant was not the shooter but was held 

vicariously liable on one of several theories of liability identified 

in the statute.

Lewis also held that “petitioners who file a complying 

petition are to receive counsel upon the filing of a compliant 

petition.” (Lewis, supra, 11 Cal.5th at p. 963.) If the record 

establishes ineligibility for resentencing as a matter of law, the 

trial court may deny the petition. (Id. at pp. 970–972.) However, 

the petition and record must establish “conclusively that the 

defendant is ineligible for relief.” (People v. Lopez (2022) 

78 Cal.App.5th 1, 14 [a “petitioner is ineligible for resentencing 

as a matter of law if the record of conviction conclusively 

establishes, with no factfinding, weighing of evidence, or 
5

credibility determinations, that . . . the petitioner was the actual 

killer.”].) (Ibid.) Where, as here, a trial court denies a section 

1172.6 petition based on the failure to make a prima facie case 

for relief, our review is de novo. (Ibid.)

After appointment of counsel, the trial court assesses when 

a prima facie case for relief has been made. However, the prima 

facie inquiry is limited. (Lewis, supra, 11 Cal.5th at p. 971.) In 

assessing whether a defendant has made a prima facie case for 

relief pursuant to section 1172.6, the trial court is entitled to 

review the record of conviction, which includes the jury 

summations, jury instructions, verdict forms, and prior appellate 

opinions. (Lewis, at pp. 971–972.) However, Lewis cautioned 

that although appellate opinions are generally considered to be 

part of the record of conviction, the prima facie bar was 

intentionally set very low, the probative value of an appellate 

opinion is case-specific, and a trial court should not engage in 

“ ‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ ” (Id. at p. 972.)

Here, the trial court appointed counsel and found Frias had 

not made a prima facie case for relief. Frias’s contentions on 

appeal challenge misconduct or error which allegedly occurred at 

his trial. Frias also asserts his conviction is based on insufficient 

or unreliable evidence. An appeal from a post-judgment petition 

for resentencing under section 1172.6 is not a vehicle to raise 

unrelated claims of error allegedly committed by the trial court; it 

is not another opportunity to challenge the original judgment on 

other grounds. (People v. Farfan (2021) 71 Cal.App.5th 942, 947

[the mere filing of a section 1172.6 petition does not afford the 

petitioner a new opportunity to raise claims of trial error or 

attack the sufficiency of the evidence supporting the jury’s 
6

findings]; People v. Allison (2020) 55 Cal.App.5th 449, 461 [a

petition for resentencing does not provide a do-over on factual 

disputes that have already been resolved], disapproved on 

another ground in People v. Strong (2022) 13 Cal.5th 698, 718, 

fn. 3.) Frias’s contentions alleging trial court error are properly 

rejected.

We decline to exercise our discretion to conduct an 

independent review of the record. (Delgadillo, supra, 14 Cal.5th

at p. 232.)

DISPOSITION

The order denying the petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

WILEY, J.

VIRAMONTES, J.