Filed 1/13/ 23 P. v. Aguirre CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

NOEL ANUAR AGUIRRE,

Defendant and Appellant. G061758

(Super. Ct. No. 05SF0271)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 T he trial court denied defendant Noel Anuar Aguirre ’ s Penal Code section

117 0.95 petition seeking to vacat e his two attempted murder conviction s ( now Pen. Code,
§ 117 2.6 )

. 1 The court denied the petition because “ the jury specifically found that the attempted murders were committed willfully, deliberately, and with premeditation and that petitioner personally discharged a firearm causing great bodily injury

. ”

Aguirre filed a n otice of appeal. A ppointed appellate c ounsel filed a n opening brief raising no arguable issues. ( See People v. Wende (1979) 25 Cal.3d 436
( Wende ) .) Aguirre did not file a supplemental brief on his own behalf.

I n the interests of justice, this court has reviewed the record and found no arguable issues. ( See People v. Delgadillo (2022 ) 14 Cal.5th 216, 230 [ “ if the appellate court wishes, it may also exercise its discretion to conduct its own independent review of the record in the interest of justice ” ] .) Thus, we affirm the order of the trial court

.

I

PROCEDURAL HISTORY

In 200 7
, a jury convicted Aguirre of two counts of attempted premeditated

murder and one count of street terrorism. The jury found true allegation s that Aguirre committed the attempted murders for the benefit of a criminal street gang, and personally discharged a firearm causing great bodily injury. T he court foun d true a prior strike allegation. The court sentenced Aguirre to 50 years to life, plus nine years

. This court

affirmed the judgment as modified. ( People v. Aguirre et al. ( Nov. 19 , 200 8 , G 03 9307 ) [nonpub. opn.].)

In March 2022
, Aguirre f iled a postjudgment petition seeking to vacate his attempted murder conviction s and to be resentenced

. (§ 1172.6.) T he prosecution filed a

1 Further undesignated statutory references are to the Penal Code. The Legislature renumbered former section 1170.95 without substantive change, effective June 30, 2022. (Stats. 2022, ch

. 58, § 10.)3

r espons e , which included a copy of the information, the jury instructions used in the 2002
trial, a copy of the verdict forms, and the underlying unpublished opinion

.

In August 2022, the trial court conducted a prima facie hearing and denied Aguirre ’ s petition in a written ruling: “ Without reviewing the facts underlying petitioner ’ s conviction, the record of conviction clearly establishes that petitioner was the actual perpetrator of the attempted murder and that he acted with the intent to kill. The jury was never instructed on the natural and probable consequences doctrine. ” Aguirre filed a notice of appea l

.

II

DISCUSSION When appointed counsel has identif ied no arguable issues on appeal, the appellate court independently review s the record for any arguable issues . ( Wende
, supra , 25 Cal.3d at pp. 441

- 442.) Generally, “ an arguable issue on appeal consists of two elements. First, the issue must be one which . . . is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reas onable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment. ” ( People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

Here
, after independently review ing the record , we have similarly found no arguable issues. (See Wende
, supra , 25 Cal.3d at p. 442, fn. 3.) T he absence of an
instruction on the natural and probable consequences doctrine and the jury ’ s true finding

on the firea rm enhancement con firm s Aguirre is ineligible for relief under section 117 2.64

as a matter of law

. 2 Thus, the trial court properly denied the section 1172.6 petition.
(See People v. Lewis (2021) 11 Cal.5th 952, 961

- 970.)

III

DISPOSITION

The order is affirmed.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

DELANEY, J.

2 It is well established that “ the felony

- murder rule is inapplicable to attempted murder as well as aiding and abetting an attempted murder. ” ( Peopl e v. Patterson (1989) 209 Cal.App.3d 610, 614.)