1

Filed 1/12/ 23 P. v. Navarro CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE OF THE STATE OF

CALIFORNIA

, Plaintiff and Respondent,

v.

JORGE LEON NAVARRO

, Defendant and Appellant. A 165489

( Solano County Super. Ct. No. FCR302303 )

Defendant Jorge Leon Navarro appeals from a May 4, 2022 order

denying his petition for resentencing of his attempted murder conviction

under Penal Code 1 former section 1170.95, now section 117 2.6. 2 We affirm.

Section 1172.6 allows a defendant to petition for resentencing if

convicted of attempted murder under the now invalid natural and probable

consequences theory. ( Id ., subd. (a).) At the hearing held on Navarro’s

petition, his assigned counsel confirmed that a review of the record of

1 All undesignated statutory references are to the Penal Code.

2 Effective June 30, 2022, the Legislature renumbered section 1170.95 to

section 1172.6

. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Throughout this opinion, we cite to section 1172.6 for

ease of reference.2

conviction

— including the court’s jury instructions

— reflected that Navarro

was not convicted of attempted murder under the natural and probable

consequences theory. After the trial prosecutor concurred with assigned

counsel ’s assessment of the record , t he superior court summarily denied the

petition on the basis that Navarro was not statutorily eligible for section

1172.6 relief

.
Navarro’s a ppe llate counsel has filed a brief raising no issues and asks

us to independently review the record under People v. Wende (1979) 25 Cal.3d

436 ( Wende )

. 3 Appellate counsel has further confirmed that Navarro was

informed of his right to file a supplemental br ief, but he has not filed such a

brief.

Since the completion of the briefing in this appeal, our Supreme Court

decided People v. Delgadillo (2022) 14 Cal.5th 216 ( Delgadillo ) on December

19, 2022. Delgadillo holds that when appointed counsel determines that an

appeal from an order denying postconviction relief, such as the order denying

Navarr o ’s section 1172.6 petition, lacks arguable merit, “ Wende procedures

are not constitutionally compelled.” ( Delgadillo, supra , 14 Cal.5th at p. 233.)

Ho wever, “[w] hen counsel submits notice that such an appeal lacks arguable

merit, the C ourt of A ppeal should provide notice to the defendant that

counsel was unable to find any arguable issues; the defendant may file a

supplemental brief or letter raising an y argument the defendant wishes the

court to consider; and if no such supplemental brief or letter is timely filed,

the court may dismiss the appeal as abandoned. ” ( Id . at p

. 222. ) “If the

3 To facilitate this review, we grant appe llate counsel ’s motion to augment the record to include certain portions of the trial transcripts filed on Navarro’s direct appeal of his conviction, which includ e the jury instruction

discussion and the jury instructions given at trial. ( People v. Navarro (dec. Sept. 19, 2019, A151606) [nonpub. opn.].)3

appeal is dismissed as abandoned, the Court of Appeal does not ne ed to write

an opinion but should notify the defendant when it dismisses the matter

. ”

( Id . at p. 232. )

Because the briefing in this case was completed in September 2022,

Navarro was not given Delgadillo notice that this court might dismiss the

appeal as abandoned if he failed to file a supplemental brief

. In the interest

of judicial economy, we exercise our discretion to independently review the

record. ( Delgadillo

, supra , 14 Cal.5th at p. 232 [“[w]hile it is wholly with in

the court’s discretion, the Court of Appeal is not bar r ed from conducting its

own independent review of the record in any individual section 1172.6

appeal”].)

Having independently reviewed the record, we find no arguable issues

that warrant further brie fing by appellate counsel. The record reflects that

at trial the jur ors were instructed that to convict N avarro of attempted

murder they had to find he had the specific intent to murder the victim when

he chose to aid and abet the perpetrator of the attem pted murder. Because

Navarro was not convicted of attempted murder under the natural and

probable consequences theory, the superior court properly determined he was

statutorily ineligible for section 1172.6 relief. Accordingly , the order denying

the peti tion for resentencing is affirmed.

D ISPOSITION

The May 4, 2022 order denying the petition for resentencing is

affirmed.4 _________________________ Petrou, J.

WE CONCUR:

_________________________ Tucher, P.J.

_________________________ Fujisaki, J.

A165489/

People v. Navarro