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Filed 10/9/23 P. v. Hendrix CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCELL HENDRIX,

Defendant and Appellant. C096994

(Super. Ct. No. 08F09531)

Defendant Marcell Hendrix appeals from the denial of his postconviction petition

for relief under Penal Code section 1172.6. 1 Counsel for defendant filed a brief seeking our independent review under People v. Wende (1979) 25 Cal.3d 436 and People v.

1 Further undesignated statutory references are to the Penal Code.
Defendant filed his petition under former section 1170.95. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 with no change in the text. (Stats. 2022, ch. 58, § 10.) We will refer to the statute by it s current section number.2

Delg adillo (2022) 14 Cal.5th 216 to determine whether there are any arguable issues on appeal. Defendant also filed a supplemental brief in propria persona. Disagreeing with

defendant ’ s claim of error, we will affirm.

FACTUAL AND PROCEDURAL BACKGROUND A jur y found defendant guilty of attempted murder (§§ 664/187, subd. (a)) and one count of infliction of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)) , and

found true several enhancements

. The trial court found a prior strike allegation true and sentenced defendant to a total term of 29 years. On April 1 , 2022, defendant filed a petition for resentencing under section 1172.6, alleging he was convicted on a now

- invalid theory. The prosecutor filed a response, arguing the jury instructions at defendant ’ s trial did not include an instruction on the natural and probable consequences doctrine, and instead required the jury to find defendant had the intent to kill to find defendant guilty of attempted murder. The prosecutor attache d the jury instructions to the response , including the attempted murder

instruction under CALCRIM No. 600

. On September 13, 2022, the trial court denied defendant ’ s petition by written

order
, stating the attempted murder instruction “required the jury to find [defendant]

‘ intended to kill a person ’ in order to find him guilty” and the “jury was not instructed on
felony murder (CALCRIM 540A, 540B) or the natural and probable consequences doctrine (CALCRIM 402, 403).”

DISCUSSION

Under Delgadillo , we must “e valuate the specific arguments presented in
[defendant ’ s supplemental brief],” but we are not compelled to undertake an “independent review of the entire record to identify unraised issues.” ( People v.
Delgadillo

, supra , 14 Cal.5th at p. 232.) We proceed accordingly.3

In his supplemental brief, d efendant challenges the trial court ’ s order denying his section 1172.6 petition, stating “a review of the actual trial transcripts of the entire jury
trial will only reveal whether what is demanded within [section ] 1172.6 has occurred.”

He also contends the “ [s] pecific intent to kill is equal to imputed malice.” We disagree. Trial courts are permitted to review the record of conviction at the section 1172.6 prima facie stage to determine whether a petitioner is i neligible for relief as a matter of
law. ( People v. Lewis (2021) 11 Cal.5th 952, 971

- 972.) The record of conviction includes the jury instructions provided at the petitioner ’ s trial. (See People v. Harden
(2022) 81 Cal.App.5th 45, 52 [“ if the record shows that the jury was not instructed on either the natural and probable consequences or felony

- murder doctrines, then the petitioner is ineligible for relief as a matter of law ”].) And we must presume the jury

followed its instructions. ( People v. McKinnon (2011) 52 Cal.4th 610, 670. ) Section 1172.6 permits resentencing of attempted murder convictions only if the person was convicted of “attempted murder under the natural and probable consequences

doctrine.” (§ 1172.6, subd. (a).) The jury in d efendant ’ s trial was not given a natural and probable consequence instruction, and instead was required to find defendant personally harbored the intent to kill to find him guilty of attempted murder. (See CALCRIM

No. 600.) This finding renders him ineli gible for relief under section 1172.6 as a matter of law, and the trial court properly denied defendant ’ s petition on this basis. (See People

v. Harden

, supra , 81 Cal.App.5th at p. 52.)4 DISPOSITION

The trial court ’ s order denying defendant ’ s petition for resentencing under section

1172.6 is affirmed.

/s/ EARL, P. J.

We concur:

/s/ RENNER, J.

/s/ MESIWALA, J.