Filed 1/25/24 P. v. Armendariz CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DAVID ARM ENDARIZ

,
Defendant and Appellant. B 329819

(Los Angeles County Super. Ct. No. TA092537 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Meyer , Judge. Affirmed. Jeanine G. Strong , under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.2 A jury convicted defendant and appellant David
Armendariz (defendant) and his codefendant Jonathan Juarez of first degree murder. The facts adduced at tr ial demonstrated Juarez was the shooter in the gang

- related killing ; defendant
aided and abetted the murder. The jury found a gang enhancement attached to the murder charge true and t he trial court found defendant had suffered two prior Three Strikes la w convictions and two prior convictions within the meaning of Penal Code section 667(a)(1). 1 The court
sentenced defendant to a total of 85 years to life in prison . In 2010, this court affirmed defendant’s conviction on direct appeal.
Years later , def

endant petitioned for resentencing pursuant to section 1172.6 (former section 1170.95). After appointing counsel and receiving briefs from the People and defendant, the trial court held a hearing and denied the petition based on its finding that defendant did not present a prima facie case for
relief. The court found the jury instructions given at defendant’s
trial revealed he was convicted of express malice, first degree
murder. 2 Defendant appealed, and this court appointed counsel to represent him. After examining the record, defendant’s attorney filed an opening brief raising no issues and asking that we follow the procedures set forth in People v. Delgadillo (2022) 14 Cal.5th 216. We invited defendant to submit a supplemental brief.

1 Statutory references that follow are to the Penal Code.

2 The appellate record establishes the jury was not instructed on either felony murder or the natural and probable consequences doctrine.3 Defendant sub mitted a two

- page letter in response that (1)
requests an evidentiary hearing because a set of car keys were never tested for DNA, (2) states his lawyer never gave him the option to choose whether he wanted a jury or bench trial

, and (3)
contends he is una ble to pay victim restitution fees ordered as part of his sentence

. We limit our consideration to these issues. ( Delgadillo , 14 Cal.5th at 232 [where a defendant ’ s attorney finds no arguable issues in an appeal from the denial of a section 1172.6 petitio n and the defendant files a supplemental brief, “the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion,” but the question of whether to conduct an independent review of the
entire record i s “wholly within the court ’ s discretion”].) None of the arguments raised in defendant’s supplemental
brief address es his eligibility for resentencing under section

1172.6. DNA testing, the question of a jury or bench trial, and
restitution fees have no b earing on whether defendant could “presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6(a)(3).) Defendant’s arguments accordingly provide no
basis for reversal. (See, e. g., People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial error”].)4 DISPOSITION

The trial court’s order denying defendant’s section 1172.6 petition is affir med.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.