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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered 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

The trial court denied defendant Noel Anuar Aguirre’s Penal Code section 

1170.95 petition seeking to vacate his two attempted murder convictions (now Pen. Code, 

§ 1172.6).

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 notice of appeal. Appointed appellate counsel filed an 

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.

In 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 2007, a jury convicted Aguirre of two counts of attempted premeditated 

murder and one count of street terrorism. The jury found true allegations that Aguirre 

committed the attempted murders for the benefit of a criminal street gang, and personally 

discharged a firearm causing great bodily injury. The court found 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, 2008, G039307) 

[nonpub. opn.].)

In March 2022, Aguirre filed a postjudgment petition seeking to vacate his 

attempted murder convictions and to be resentenced. (§ 1172.6.) The 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

response, 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 appeal.

II

DISCUSSION

When appointed counsel has identified no arguable issues on appeal, the 

appellate court independently reviews 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 reasonable 

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 reviewing the record, we have similarly found no 

arguable issues. (See Wende, supra, 25 Cal.3d at p. 442, fn. 3.) The absence of an 

instruction on the natural and probable consequences doctrine and the jury’s true finding 

on the firearm enhancement confirms Aguirre is ineligible for relief under section 1172.6 
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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.” (People v. Patterson (1989) 209 

Cal.App.3d 610, 614.)