Filed 10/ 1/20 P. v. Guillen 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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.

MIGUEL LOPEZ GUILLEN,
Defendant and Appellant. G0 5 89 57
(Super. Ct. No. 0 9CF0684 )

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger , Judge. Affirmed.

Robert L.S. Angres , under appo intment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 In September 2010 , a fter a jury found appellant Miguel Lopez Guillen guilty of first degree murder (Pen. Code, 187, subd. (a ); all further statutory references are to the Penal Code) and premeditated attempted murder , the trial court sentenced him

to 32 years to life in state prison . In an u npublished opinion, this court affirmed the
conviction s

. ( Pe ople v. Guillen ( Sept. 27, 2012 , G04 5 98 9 ) [ no npub. opn.].)

In February 2020 , Guillen filed a petition to vacate his murder conviction under section 1170.95, alleging he was convicted “pursuant to the felony murder rule or the natural and probable cons equences doctrine.” The trial court determined the petition did not set forth a prima facie case for relief because “[a] review of court reco r ds ” showed Guillen was not convicted “based on felony

- murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors.”

Guillen appealed, and h is appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 ( Wende ) and Anders v. California (1967) 386 U.S. 738. Guillen did not file a s upplement al brief . Because our review of the record discloses no arguable issues, we affirm the postjudgment order denying Guillen ’s section 1170.95 petition.

I

F ACTS AND P ROCEDURAL H ISTORY The underlying facts were recounted in our opinion affirming Guillen ’s
conviction for first degree murder based on premeditation and deliberation. “ Following a heated argument at the supermarket, which Guillen acknowledges establishes a prior relationship and constitutes a motive (alt hough he characterizes it as a ‘ verbal spat ’ ), Guillen assembled a group, including a person with a loaded firearm, and drove to [the victim] ’s home. The assailants cased the scene as they drove past the house, then came

arou nd the block and parked. Guillen and the shooter walked up on the victim’s group as Guillen’s Honda crept alongside. After a brief verbal exchange, the shooter calmly3

removed a loaded firearm and fired approximately six shots at the heads of his intended
victims. ” ( People v. Guillen ( Sept. 27, 2012 , G0 4 5989 ) [ no npub. opn.].)

A review of the court records shows the jury was not instructed on the felony

- murder rule or the natural and probable consequences doctrine. As noted, the jury
convicted Guillen of one count of f irst degree premeditated murder

. After Senate Bill No. 1437 became effective, Guillen filed a petition to
vacate h is murder conviction under section 1170.95. The trial court determin ing Guillen was not eligible for relief and denied the petition. After Guillen appealed, h is appointed counsel filed a brief raising no issue, but asking this court to independently review the record on appeal.

II
DISCUSSION
Senate Bill No. 1437 (S en. B i ll 1437) , which became effective Ja nuary 1, 2019, was enacted to “ ‘amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual ki ller, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckle ss indifference to
human life.’ ” ( People v. Martinez (2019) 31 Cal. App.5th 719, 723 ( Martinez ), quoting Stats. 2018, ch. 1015, § 1, sub d. (f).) It added section 1170.95, which allows those “convicted of felony murder or murder under a natural and probable consequences theory

. . . [to] file a petition with the court that sentenced the petitioner to have the petitioner’s
murder conviction vacated and to be resentenced on any remaining counts .

. . .” (§ 1170.95, subd. (a).)

“ An offender may file a petition under section 1170.95 where all three of
the following conditions are met: ‘ (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony4

murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019. ’ (§ 1170. 95, subd. (a)(1)

- (3). ) ” ( Martinez , supra , 31 Cal.App.5th at

p. 723.)
Guillen is not entitled to relief under S en

. B ill 1437 because he was not
convicted of felony murder or murder under a natural and probable consequences theory

. As an appellate court recently explained, “t he jury instructions in this case demonstrate, on their face and as a matter of law, that [petitioner] was not and could not have been
convicted of

. . . murder under the natural an d probable consequences doctrine. This is so because the jurors were not provided any instruction on which they could have found [petitioner] guilty of murder under that doctrine. ” ( People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted Sept

. 23 , 2020, S26 3939 .) Similarly, the jury was not instructed on the felony

- murder rule. The trial court properly denied Guillen ’s section 1170.95 petition.

Our review of the entire record, including the matters identified by counsel,
does not show the exi stence of an arguable issue. ( Wende , supra , 25 Cal.3d at pp. 442

- 443.) Consequently, we affirm. ( Wende , supra , 25 Cal.3d at p. 443.)5 III

D IS POSITION The postjudgment order is affirmed.

ARONSON, J.

WE CONCUR:

O’LEARY, P. J.

FYBEL, J.