People v. Cruz CA2/3 ( 2022 )

Filed 12/23/22 P. v. Cruz CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE, B319452
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA144805)
v.
JUAN CARLOS CRUZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Affirmed.
Kevin D. Sheehy, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Juan Carlos Cruz (Cruz) appeals from an order denying his
petition for resentencing under Penal Code1 section 1172.6.2 His
appellate counsel filed a brief under People v. Wende (1979) 25
Cal.3d 436 (Wende), asking us to independently review the
appeal. Exercising our discretion to independently review the
record (People v. Delgadillo (Dec. 19, 2022, S266305) __ Cal.5th
__ (Delgadillo)),3 we affirm.
1 All further undesignated statutory references are to the
Penal Code.
2 Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
3 While this matter was pending, our Supreme Court issued
Delgadillo, supra, __ Cal.5th __. The court held that the
procedures in Anders v. California (1967) 386 U.S. 738 and
Wende do not apply to appeals from the denial of postconviction
relief under section 1172.6. (Delgadillo, supra, __ Cal.5th __ [pp.
16–17].) The court instructed that on appeal from an order
denying section 1172.6 relief, a counsel who finds no arguable
issue should file a brief informing the appellate court of that
determination and include a concise factual recitation. The
appellate court shall send a copy of the brief to the defendant
informing the defendant of the right to file a supplemental brief
and that if one is not filed within 30 days, the court may dismiss
the matter. If a supplemental brief is filed, we must evaluate the
contentions in it. If a supplemental brief is not filed, we may
dismiss the appeal as abandoned without a written opinion.
However, we retain discretion to independently review the
record. (Delgadillo, supra, __ Cal.5th __ [pp. 17–19].) Thus, in
Delagdillo, supra, __ Cal.5th __ [pp. 19–20], the Supreme Court
2
FACTUAL AND PROCEDURAL BACKGROUND
An information filed on July 9, 2018, charged Cruz with
murder with malice aforethought (§ 187, subd. (a); count 1), and
shooting at an occupied vehicle (§ 246; count 2). As to each count,
the information alleged violations of section 12022.53,
subdivisions (b), (c), and (d). He was convicted on count 1 of
second degree murder (§ 187, subd. (a)), and shooting at an
occupied vehicle in violation of section 246 under count 2. He
was likewise found to have violated section 12022.53,
subdivisions (b), (c), and (d).
On January 15, 2020, Cruz was sentenced to prison for 40
years to life. He was sentenced on the basis that he was the
actual shooter of the victim. In 2021, this court modified the
judgment to accurately reflect Cruz’s actual custody credits, but
otherwise affirmed. (People v. Cruz (Apr. 29, 2021, B304290)
[nonpub. opn.].)
In February 2022, Cruz filed, in propria persona, a form
fashioned as a “Petition for Resentencing” under section 1170.95.
It was filed after the effective date of Senate Bill 775. He alleged
exercised that discretion because the notice sent to Delgadillo
was “suboptimal,” having cited Wende after counsel had filed a
Wende brief, but not mentioning that Delgadillo’s appeal might
be dismissed if he did not file a supplemental brief, thereby
making it “reasonabl[e]” for Delgadillo to conclude “that the
Court of Appeal would conduct an independent review of the
record, even absent a supplemental brief.” Because the notice
sent to Cruz was similarly “suboptimal[,]” we exercise our
discretion to independently review the record.
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that the information allowed the prosecution to proceed under
theories of felony murder, and murder under the natural and
probable consequences theories or other theories where malice is
imputed based solely on the person’s participation in the crime;
also he urged that he was convicted of murder, and he could not
be presently convicted because of changes made to sections 188
and 189, effective January 1, 2019. (§ 1170.95, subd. (a)(3).)
In March 2022, the trial court summarily denied the
petition. The court concluded Cruz was “not entitled to relief as a
matter of law” because he was the actual killer and he was not
convicted under a theory of felony murder of any degree, or a
theory of natural and probable consequences. In addition, the
court noted there were no jury instructions for aiding and
abetting, felony murder, or natural and probable consequences.
Citing the opinion on direct appeal, the court noted the opinion
reflects petitioner, “was the actual killer and was convicted of
murder on a theory of being the direct perpetrator and not on a
theory of felony murder of any degree, or a theory of natural and
probable consequences.”
In April 2022, Cruz filed a document he styled as a
“Petition for Writ of Mandate” challenging the trial court’s March
2022 order denying the petition. This court issued an order
treating the petition as a notice of appeal from the March 2022
order.
Counsel was appointed for Cruz. In preparation for the
appeal, counsel requested judicial notice of court records, files,
transcripts, and decisions and official acts of the Second District
Court of Appeal, Division Three, including its unpublished
written decision from April 2021. Counsel also requested judicial
notice of the entire record on appeal including all clerk’s and
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reporter’s transcripts, in prior related appeal B304290, including
all jury instructions/requests during deliberations and the closing
arguments to the jury. We granted the judicial notice request in
its entirety.
In his Wende brief, counsel for Cruz explains in detail the
facts as quoted from the opinion on direct appeal. We have no
additional need to do so here, and we briefly summarize the
events leading to the death of the victim.
This case grows out of an unfortunate relationship that
developed between Cruz and Jennifer Perez (Perez), the wife of
the murder victim Arturo Villanueva (Villanueva). Briefly, at
some point in April of 2017, Perez came to believe Villanueva was
cheating on her. As revenge, she began an affair with Cruz.
Potential violence and threats between Villanueva and Cruz
escalated until the night of November 18, 2017, when Cruz,
angered at Villanueva, shot him while he—Villanueva—was
sitting in his vehicle. Villanueva died of multiple gunshot
wounds. He was shot six times, four of which were fatal.
Cruz was arrested on November 30, 2017. Until the
murder of Villanueva, Cruz (the father of three young children)
had no criminal record.
DISCUSSION
Court-appointed appellate counsel filed an opening brief
that raises no issues but asks this court to independently review
the record under Wende. We have reviewed the record as well as
the matters for which we granted counsel’s request for judicial
notice. We have also notified Cruz that his attorney has found no
arguable issues under Wende, and we have given Cruz the
opportunity to file a brief on his own behalf, which he has not
done.
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We are satisfied no arguable issues exist. We further
conclude Cruz’s attorney has fully complied with the
responsibilities of counsel. (People v. Kelly (2006) 40 Cal.4th 106,
125–126; Wende, supra, 25 Cal.3d at pp. 441–442).
We add that the absence of felony murder, and natural and
probable consequences being sought at trial leaves little doubt
that Cruz’s conviction for second degree murder was not
predicated on those theories. (See People v. Daniel (2020) 57
Cal.App.5th 666, 677 & fn. 4 [summary denial is appropriate in
the absence of jury instructions on felony murder or natural and
probable consequences doctrines].) Under the circumstances, the
jury must have concluded Cruz had the intent to kill. He is
therefore ineligible for section 1172.6 relief, as the trial court
found.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BENKE, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
*
Retired Justice of the Court of Appeal, Fourth District, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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