People v. Vargas CA4/3 ( 2023 )

Filed 2/27/23 P. v. Vargas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 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, G061640
v. (Super. Ct. No. 02CF0607)
FERMIN VARGAS, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Michael J. Cassidy, Judge. Affirmed.
Robert L. Hernandez, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Fermin Vargas filed a petition for resentencing pursuant to
former Penal Code section 1170.95.1 At the prima facie hearing on the petition, the trial
court denied Vargas resentencing relief, finding he was the actual shooter and was not
convicted under an imputed malice theory of liability. Appointed appellate counsel for
Vargas filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting
forth the facts of the case. Citing Anders v. California (1967) 386 U.S. 738 (Anders),
appointed counsel also identified potential issues to assist in our independent review.2
Although Vargas was provided 30 days to file written argument on his own behalf, he did
not do so.3
Exercising our discretion and in the interest of justice, we have examined
the entire record and we find no reasonably arguable issue. (See People v. Delgadillo,
supra, 14 Cal.5th at p. 232 and People v. Flores (2020) 54 Cal.App.5th 266, 268.) We
therefore affirm.
1 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section
1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the statute as
former section 1170.95 or section 1172.6.
All further statutory references are to the Penal Code.
2 While this appeal was pending, the California Supreme Court decided People v.
Delgadillo (2022) 14 Cal.5th 216, 226 and concluded “the procedures set out in Anders
and Wende do not apply to an appeal from the denial of postconviction relief.” However,
the court in Delgadillo set forth “a few basic procedures” courts of appeal should follow
when considering an appeal from the denial of a section 1172.6 petition where appointed
counsel has found no arguable issues to be pursued. (Id. at pp. 231-232.) In such
instances, proper notice must be given to the defendant and the defendant provided an
opportunity to file a supplemental brief or letter. If the defendant does not do so, “the
Court of Appeal may dismiss the appeal as abandoned. [Citation.]” (Id. at p. 232.) Or
the Court of Appeal may conduct its own independent review of the record in an exercise
of its discretion. (Ibid.)
3 This court’s notice to Vargas predated the decision in Delgadillo. However, the
fact our notice may not have contained the suggested language from Delgadillo or that
Vargas did not file a supplemental brief is of no consequence as we exercised our
discretion to conduct an independent review of the record.
2
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, a jury found Vargas guilty of premeditated and deliberate
attempted murder (§§ 664, subd. (a), 187, subd. (a)) and assault with a semiautomatic
firearm (§ 245, subd. (b)). As to both offenses, the jury found Vargas had personally
inflicted great bodily injury (§ 12022.7). The jury also found Vargas had personally
discharged a firearm resulting in great bodily injury during the commission of the
attempted murder (§ 12022.53, subd. (d)) and had personally used a firearm (§ 12022.5,
subd. (a)) during the commission of the assault. The trial court imposed a total sentence
of 25 years to life. This court affirmed the judgment on direct appeal. (People v. Vargas
(Jan. 28, 2009, G036899) [nonpub. opn.].)
In March 2022, Vargas filed a petition for resentencing pursuant to former
section 1170.95 and counsel was subsequently appointed for him. The People filed a
response to Vargas’s petition arguing it should be denied. A prima facie hearing on the
petition was heard by the trial court. At this hearing, the trial court reviewed the petition,
the People’s response, the record of conviction, and found Vargas had failed to establish
a prima facie showing for relief. Vargas appealed.
DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1015) amended 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 killer, did not act with the intent to kill, or was
not a major participant in the underlying felony who acted with reckless indifference to
human life.’ [Citation.]” (People v. Lewis (2021) 11 Cal.5th 952, 959.) Senate Bill
No. 1437 also created procedures “for convicted murderers who could not be convicted
under the law as amended to retroactively seek relief.” (Lewis at p. 957.) A subsequent
amendment to former section 1170.95 extended relief to defendants convicted of
3
attempted murder based on the natural and probable consequences doctrine or
manslaughter. (Sen. Bill No. 775 (2021-2022 Reg. Sess.) Stats. 2021, ch. 551.)
After receipt of a section 1172.6 resentencing petition, counsel shall be
appointed upon petitioner’s request, the prosecutor must then file a response to the
petition, and a reply may be filed by the petitioner. (§ 1172.6, subds. (b)(1)-(3) and (c).)
The trial court shall then “hold a hearing to determine whether the petitioner has made a
prima facie case for relief.” (Id., subd. (c).)
At the prima facie hearing, the trial court may rely on the record of
conviction. (Lewis, supra, 11 Cal.5th at pp. 970-971.) “The record of conviction will
necessarily inform the trial court’s prima facie inquiry under [former] section 1170.95,
allowing the court to distinguish petitions with potential merit from those that are clearly
meritless.” (Id. at p. 971.) Instructions given to the jury at a petitioner’s trial may be
relied on by the trial court as part of the record of conviction at the prima facie hearing.
(People v. Soto (2020) 51 Cal.App.5th 1043, 1055.)
Appellate counsel suggests we consider whether the trial court abused its
discretion when it found Vargas had failed to establish a prima facie showing for relief.
Here, the trial court reviewed the record of conviction and determined the jury found
Vargas to be the actual shooter. The jury was not instructed on the natural and probable
consequences doctrine or an imputed malice theory of liability.
After independently reviewing the entire appellate record, we find no
arguable issues. We therefore affirm the trial court’s order denying Vargas’s
postjudgment relief.
4
DISPOSITION
The postjudgment order denying the resentencing petition is affirmed.
MOTOIKE, J.
WE CONCUR:
O’LEARY, P.J.
BEDSWORTH, J.
5