Filed 7/26/23 P. v. Aremu 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

TONY OLIVER AREMU,

Defendant and Appellant. B322491

(Los Angeles County Super. Ct. No. A390607)

APPEAL from an order of the Superior Court of Los Angeles County , Norm an J. Shapiro, Judge. Affirmed. Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.2 In 1984, a jury convicted defendant Tony Aremu of second degree murder (Pen. Code, § 187, subd. (a) 1 ) and found true the allegation that he personally used a deadly and dangerous weapon in the commission of the murder (§ 12022, subd. (b)). The trial court sentenced defendant to 16 years to life in state prison. In 2019, defendant filed a petition for resentencing

pursuant to former section 1170.95. 2 The tria l court denied the petition on the ground that defendant was the actual killer

. Defendant appealed. We affirmed the court’s order, holding that defendant was ineligible for resentenc ing as a matter of law because the jury instructions in defendant’s case did not include instructions on aiding and abetting, the felony murder rule, or the natural and probable consequences doctrine, and the verdict form contained the jury’s finding that defendant personally used a deadly and dangerous weapon, a knife

. ( Peop le v. Aremu (Oct. 26, 2020

, B300328 ) [nonpub. opn.].) On January 1 3 , 2021, our Supreme Court granted

defendant’s petition for review and deferred f urther action pending its consideration and disposition of People v. Lewis ( 2020) 43 Cal.App.5th 1128 or fur ther order of the court. On September 29, 2021, after issuing its opinion in People

v. Lewis (2021) 11 Cal.5th 952, the Supreme Court dismissed

review in defendant’s case.

1 All further statutory references are to the Penal Code.

2 Effective Jun e 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) Further references will be to the statute’s current section number only.3 On April 18, 2022, following our remittitur to the trial court, defendant filed a second section 1172.6 petition for resentencing. The court denied the petition on the ground that defendant was the actual killer and therefore ineligible for relief. Defendant appealed and we appointed counsel to represent him. Counsel filed an opening brief in which she does not identify any arguable issues and request s that we evaluate any

issues defendant might raise in a supplemental brief and independently review those portions of the record necessary to resolve any such arguments pursuant to Peopl e v Delgadillo (2022) 14 Cal.5th 216 ( Delgadillo ). Further, counsel note s that

under Delgadillo we have discretion to conduct an “independent review of the record in the interest of justice.” ( Id. at p. 230 .) On January 25, 2023, we notified defendant t hat appointed appellate counsel had filed a brief that raise s no issues and

defendant had 30 days within which to submit a supplemental brief or letter stating any grounds for an appeal, or contentions, or arguments that he wished this court to consider

. Defendant timely filed a supplemental brief in which he argues that the

evidence at his trial combined with evidence not presented or withheld by the prosecution prove that he killed his victim

, Tamzetta Harris, in a heat of passion and thus was guilty of manslaughter and not second degree murder . Defendant argues

the evidence shows he had been romantic ally involved with Harris who, allegedly, was having a secret, adulterous relationship with Theodore Monroe. On the night defendant killed Harris, he saw h er exiting Monroe’s car. Defendant became enraged and killed Harris in a heat of passion. Defendant also argue s, without explanation, that the prosecution4

failed to prove malice beyond a reasonable doubt thus violating his right to a fair trial. Althoug h we have discretion to review independently the entire record, we limit our review to the issues raised in

defendant ’ s supplemental brief. ( Delgadillo, supra

, 14 Cal.5th at 232 [where the defendant ’ s attorney finds no arguable issues in an appeal from th e denial of a section 1172.6 petition 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 it is “ wholly within the

court ’ s discretion ” whether to conduct an independent review of the entire record].) The arguments defendant raises in his supplemental brief do not address his eligibility for resentencing under section 1172.6. Defendant’s evidentiary claims do not b ear on whether

he cou ld “presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019. ” (§ 1172.6, subd. (a)(3).) Accordingly, we reject those arguments in this appeal from the trial court’s postjudgment order d enying defendant’s section 1172.6 petition. (See, e.g., People v. DeHuff (2021) 63 Cal.App.5th 428, 438, fn. omitted [section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial error”].)5 DISPOSITION

The trial c ourt’s order denying defendant’s section 1172.6 petition is affirmed

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.