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Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 pub lication or ordered published, e xcept 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DIVI SION FIVE

THE PEOPLE,

Plaint iff 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 Kenn edy, 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 de fendant and appellant Jose De

L a 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, subd s . (b) & (c).) The trial court senten ced defendant to 25 years to li fe 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, 200 3

, B158884 ) [nonpub. opn.].) On March 20, 2020, defendant filed a petiti on for resentencing pursuant to Senate Bill No. 1437 and former section

1170.95

. 2 On April 21, 2020, t he trial court appointed counsel to
represent defendant

. On November 10, 2020, t he Los Angeles County District Attorney filed a n opposition to defendant ’s petition that included

as ex hibits the appellate opinion referenced above and a transcript of the jury instructions given at defendant’s trial. T he District Attorney argued , among other things, that defendant’s petition failed to make a prima facie sho wing for relief because the jur y 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 t o show cause and hold an eviden tiary 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 mal ice, 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 t he 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 argu ment, it reasoned that jurors d o 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
differe nt kind of situation than a fel ony 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

ar guable issues and requested tha t 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, 20 2 1, we notified defendant that appointed appellate counsel had filed a brief that raised no i ssues 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 defenda nt’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 def endant advising him of his righ t 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 defe ndant that complies with Delgad illo, 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 instruc ted on and defendant was not co nvicted 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 cri me. A ccordingly, he is ineligi ble 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.