People v. De La Cruz CA2/5 ( 2022 )

Filed 2/7/22 P. v. De La Cruz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B312111
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA198877)
v.
JOSE DE LA CRUZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kathleen Kennedy, Judge. Dismissed.
Theresa Osterman Stevenson, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for respondent.
In 2002, a jury convicted defendant and appellant Jose De
La Cruz of first degree murder. (Pen. Code, § 187, subd. (a)1.)
The jury found true the allegations that defendant personally
used and personally discharged a firearm. (§ 12022.53, subd. (b)
& (c).) The trial court sentenced defendant to 25 years to life plus
20 years in state prison. On October 8, 2003, a prior panel of this
division affirmed defendant’s judgment. (People v. De La Cruz
(Oct. 8, 2003, B158884) [nonpub. opn.].)
On March 20, 2020, defendant filed a petition for
resentencing pursuant to Senate Bill No. 1437 and section
1170.95.
On April 21, 2020, the trial court appointed counsel to
represent defendant.
On November 10, 2020, the Los Angeles County District
Attorney filed an opposition to defendant’s petition that included
as exhibits the appellate opinion referenced above and a
transcript of the oral jury instructions given at defendant’s trial.
The District Attorney argued, among other things, that
defendant’s petition failed to make a prima facie showing for
relief because the jury was not instructed on felony murder or the
natural and probable consequences doctrine.
On February 22, 2021, defendant filed a response to the
District Attorney’s opposition requesting the trial court to issue
an order to show cause and hold an evidentiary hearing. In his
response, defendant conceded the jury was not instructed on
felony murder or the natural and probable consequences doctrine,
but argued the jury was instructed on lying in wait murder which
1 All further statutory references are to the Penal Code.
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“imputes malice, just like the natural and probable consequences
doctrine.”
At the April 8, 2021, hearing on defendant’s petition, the
trial court found there was no prima facie evidence that
defendant was entitled to relief. Rejecting defendant’s lying in
wait argument, it reasoned that jurors do not “find a lying in wait
special circumstance true unless [they] also are finding that the
person is lying in wait for the purpose of gaining an advantage
and—in committing the murder. [¶] And so this is a wholly
different kind of situation than a felony murder or a natural and
probable consequences theory.” (See § 189, subd. (a); People v.
Sandoval (2015) 62 Cal.4th 394, 416 [in addition to being a
special circumstance, lying in wait “is a means of proving first
degree murder. ‘Lying in wait is the functional equivalent of
proof of premeditation, deliberation, and intent to kill.’
[Citation.]”].)
We appointed counsel to represent defendant on appeal.
Counsel filed an opening brief in which she did not identify any
arguable issues and requested that we follow the procedure set
forth in People v. Wende (1979) 25 Cal.3d 436 and independently
review the record on appeal for arguable issues. On
September 21, 2021, we notified defendant that appointed
appellate counsel had filed a brief that raised no issues and he
had 30 days within which to brief independently any grounds for
appeal, contentions, or arguments he wanted us to consider.
Defendant did not file a supplemental brief.
Because defendant has appealed the denial of
postconviction relief and has not filed a supplemental brief, we
dismiss his appeal as abandoned. (People v. Cole (2020) 52
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Cal.App.5th 1023, 1039–1040, review granted Oct. 14, 2020,
S264278.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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