1

Filed 6/21/24 P. v. Novelo CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE

, Plaintiff and Respondent,

v. ANDRES NOVELO,
Defendant and Appellant

. A169024

( City & County of San Francisco Super. Ct. Nos. 223570, 14031390 )

MEMORANDUM OPINION

Andres Novelo appeals an order denying his petition for resentencing

under Penal Code section 1172. 6 . We affirm. 1
In 2014, Novelo stabbed and killed a stranger outside a San Francisco

bar. The following year, a jury convicted him of several felonies, including second degree murder ( § 187 , subd. (a))

, and it found true an allegation that

he personally used a knife in the commission of the murder ( § 12022
, subd. (b)(1))

. The trial court sentenced him to 19 years to life in priso n; this

court affirmed. ( People v. Novelo ( Aug. 25 , 20 17 , A1 46406 ) [nonpub. opn.].)
In 2022, Novelo petitioned for resentencing under section 1172.6

. After
appoint ing counsel
, issuing an order to show cause, and conduct ing a hearin g ,

1 We resolve this case by memorandum opinion . ( Cal. Stds. Jud. Admin., § 8.1 .) Undesignated statutory references are to the Penal Code.2

the trial court determined Novelo was in eligible for resentencing and denied
the petition. T he court noted the relevant portions of the trial transcripts
and the jury instructions demonstrated the jury determined “Novelo was the

actual killer

. . . . ” Thus
, the court concluded the prosecut ion had met its “burden of proving beyond a reasonable do ubt” that he was guilty of murder

under California law as amended by section 1172.6

. Novelo appealed. His appointed appellate counsel filed a brief

pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 identifying no
arguable issues and requesting we ex ercise our discretion to independently review the record for arguable issues. Novelo submitted a “ supplemental

brief. ” ( Capitalization omitted.) We have evaluate d the assertions raised in

Novelo’s submission ; as explained post , we conclude they do not furnish a

basis for reversal. ( See i d. at p. 232 [ the “filing of a supplemental brief or
letter does not compel an independent review of the entire record to identify

unraised issues ”].)

Novelo is not eligible for resentencing r elief because the record

establish es that he was convicted of second degree murder based on a showing of malice. The jury found he personally used a knife in the

commission of the murder , and it is undisputed the victim died of a stab

wound

. ( See People v. Cornelius (2020) 44 Cal.App.5th 54, 58 [defendant ineligible for resentencing where jury found he personally and intentionally used firearm to commit crime, an implicit finding he was the actual killer]

, abrogated on other grounds in People v. Le wis (2021) 11 Cal.5th 952, 961

–
962 .) While the jury was instructed with CALCRIM Nos. 400 and 401 (aiding
and abetting) and CALCRIM No. 402 (natural and probable consequences),

all three instructions explicitly state d they appl ied only to Novelo’s

codefend ant. ( Cf. People v. Offley (2020) 48 Cal.App.5th 588, 599 [ at3

prima facie stage, enhancement for personally and intentionally discharging

a firearm did not establish as a matter of law the defendant acted with

malice aforethought where jury was instructed on natural and probable

consequences doctrine in connection with conspiracy liability].)

To the extent Novelo attempts to raise a claim under the California

Racial Justice Act of 2020 ( § 745; RJA) , we reject it as unsupported by “ ‘legal argument with citation of authorities on the points made.’ ” ( People v. Stanley (1995) 10 Cal.4th 764, 79 3 .) His assertion s

— unsupported by a description of specific evidence or citations to authority

— that “implicit and
explicit bi as

. . . impacted the outcome of the case” and that “ disparate racial impact is reflected in statistical data by county”

— are insufficient to establish

a violation of the RJA. (See People v. Coleman (2024) 98 Cal.App.5th 709,

720

– 723 [ appellant did not establish by a preponderance of the evidence a

RJA violation ] .) 2
Finally, we reject Novelo’s summary assertion of ineffective assistance

of counsel

. ( People v. Stanley

, supra , 10 Cal.4th at p. 793 ; Strickland v.
Washington (1984) 466 U.S. 668, 687.)

DISPOSITION
The order denying Novelo’s petition for resentencing is affirmed.

Jackson, P. J.

WE CONCUR:

Simons, J. Burns, J. A169024/ People v. Andres Novelo

2 Having reached this result, we need not determine whether the RJA claim is preserved

. (See People v. Coleman

, supra , 98 Cal.App.5th at p. 720 ; People v. Lashon (2024) 98 Cal.App.5th 804, 810 .)