Filed 6/20/23 P. v. De La Cruz CA2/5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE DE LA CRUZ,

Defendant and Appellant.

 B312111

 (Los Angeles County

 Super. Ct. No. BA198877)

APPEAL from an order of the Superior Court of Los 

Angeles County, Kathleen Kennedy, Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, and Noah P. Hill, Deputy 

Attorney General, for Plaintiff and Respondent.

In 2002, a jury convicted defendant and appellant Jose De 

La Cruz of first degree murder. (Pen. Code, § 187, subd. (a)1.) 

The jury found true the allegations that defendant personally 

1 All further statutory references are to the Penal Code.
2

used and personally discharged a firearm. (§ 12022.53, subds. (b) 

& (c).) The trial court sentenced defendant to 25 years to life plus 

20 years in state prison. On October 8, 2003, a prior panel of this 

division affirmed defendant’s judgment. (People v. De La Cruz

(Oct. 8, 2003, B158884) [nonpub. opn.].)

On March 20, 2020, defendant filed a petition for 

resentencing pursuant to Senate Bill No. 1437 and former section 

1170.95.

2

On April 21, 2020, the trial court appointed counsel to 

represent defendant.

On November 10, 2020, the Los Angeles County District 

Attorney filed an opposition to defendant’s petition that included 

as exhibits the appellate opinion referenced above and a 

transcript of the jury instructions given at defendant’s trial. The 

District Attorney argued, among other things, that defendant’s 

petition failed to make a prima facie showing for relief because 

the jury was not instructed on felony murder or the natural and 

probable consequences doctrine.

On February 22, 2021, defendant filed a response to the 

District Attorney’s opposition requesting that the trial court issue 

an order to show cause and hold an evidentiary hearing. In his 

response, defendant conceded the jury was not instructed on 

felony murder or the natural and probable consequences doctrine, 

but argued the jury was instructed on lying in wait murder which 

“imputes malice, just like the natural and probable consequences 

doctrine.”

2 Effective June 30, 2022, the Legislature renumbered 

section 1170.95 to section 1172.6 with no change in text. (Stats. 

2022, ch. 58, § 10.) Further references will be to the statute’s

current section number only.
3

At the April 8, 2021, hearing on defendant’s petition, the 

trial court found there was no prima facie evidence that 

defendant was entitled to relief. Rejecting defendant’s lying in 

wait argument, it reasoned that jurors do not “find a lying in wait 

special circumstance true unless [they] also are finding that the 

person is lying in wait for the purpose of gaining an advantage 

and—in committing the murder. [¶] And so this is a wholly 

different kind of situation than a felony murder or a natural and 

probable consequences theory.” (See § 189, subd. (a); People v. 

Sandoval (2015) 62 Cal.4th 394, 416 [in addition to being a 

special circumstance, lying in wait “is a means of proving first 

degree murder. ‘Lying in wait is the functional equivalent of 

proof of premeditation, deliberation, and intent to kill.’ 

[Citation.]”].)

We appointed counsel to represent defendant on appeal. 

Counsel filed an opening brief in which she did not identify any 

arguable issues and requested that we follow the procedure set 

forth in People v. Wende (1979) 25 Cal.3d 436 and independently 

review the record on appeal for arguable issues. On 

September 21, 2021, we notified defendant that appointed 

appellate counsel had filed a brief that raised no issues and he 

had 30 days within which to brief independently any grounds for 

appeal, contentions, or arguments he wanted us to consider. 

Defendant did not file a supplemental brief.

On February 7, 2022, we dismissed defendant’s appeal as 

abandoned. Our Supreme Court granted defendant’s petition for 

review and transferred the case to us “with directions to vacate 

[our] decision and reconsider whether to exercise [our] discretion 

to conduct an independent review of the record or provide any 

other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216, 
4

232–233 & fn. 6 [(Delgadillo)].” Defendant’s counsel then filed a 

supplemental brief requesting that we conduct an independent 

review of the record and send notice to defendant advising him of 

his right to file a supplemental brief under the procedures set 

forth in Delgadillo, supra, 14 Cal.5th 216. The Attorney General 

filed a letter brief requesting that we either independently review 

the record or send a notice to defendant that complies with 

Delgadillo, ibid.

We have elected to conduct an independent review of the 

record (Delgadillo, supra, 14 Cal.5th at p. 232) and conclude that 

defendant is not entitled to relief under section 1172.6. Here, the 

jury was not instructed on and defendant was not convicted 

under either a felony murder or natural and probable 

consequences theory of murder. Nor was he convicted of murder 

under another theory under which malice was imputed to him 

based solely on his participation in a crime. Accordingly, he is 

ineligible for relief as a matter of law. (People v. Daniel (2020) 57 

Cal.App.5th 666, 677.)
5

DISPOSITION

The trial court’s order denying defendant’s petition is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.