People v. Saldana CA4/1 ( 2022 )

Filed 10/13/22 P. v. Saldana CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080412
Plaintiff and Respondent,
v. (Super. Ct. No. FWV1102225)
EMILIO PELAYO SALDANA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino
County, Ingrid A. Uhler, Judge. Affirmed.
Emilio Saldana, in pro. per.; and Michael C. Sampson, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
This an appeal from the summary denial of appellant’s second petition
for resentencing filed under Penal Code1 former section 1170.95.2
1 All further statutory references are to the Penal Code.
In May 2015, a jury convicted Emilio Pelayo Saldana of first degree
murder (§ 187, subd. (a)) and found true an allegation that a principal was
armed with a firearm during the offense (§ 12022, subd. (a)(1)). Saldana was
sentenced to an indeterminate term of 51 years to life in prison.
In 2019, Saldana filed his first petition for resentencing under
section 1172.6. The court found the jury had not been instructed on felony
murder or natural and probable consequences theories of liability and denied
the petition.
In 2022, Saldana filed the current petition for resentencing under
section 1172.6. The court appointed counsel and ultimately denied the
petition. The court again found the jury was not instructed on felony murder
or natural and probable consequences and that Saldana was tried as a direct
aider and abettor.
Saldana filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Saldana the opportunity
to file his own brief on appeal. He has responded by filing a supplemental
brief, which we will discuss below.
2 Former section 1170.95 was renumbered as section 1172.6 without
substantive change on June 30, 2022. (See Stats. 2022, ch. 58 (Assem. Bill
No. 200) § 10, eff. June 30, 2022.) As such, we refer to the subject statute by
its current number throughout this opinion.
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DISCUSSION3
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review of
the record, and in compliance with Anders v. California (1967) 386 U.S. 738(Anders), counsel has identified a possible issue that was considered in
evaluating the potential merits of this appeal: Whether the court erred in
denying Saldana’s petition for resentencing, finding the petition did not state
a prima facie case for relief.
In his supplemental brief, Saldana argues counsel provided ineffective
assistance. He recognizes no instructions were given to the jury on felony
murder or liability based on the doctrine of natural consequences. Instead,
he relies on the instructions given on liability based on an unpled theory of
liability based on participating in a conspiracy to commit murder. Saldana
claims the conspiracy instruction has the same legal effect as instructions on
natural and probable consequences. Saldana’s submission does not raise any
arguable issues for reversal on appeal.
We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Saldana on this appeal.
3 The facts of the offense were thoroughly discussed in our prior opinion.
We will not repeat them here. (People v. Olvera et al. (Dec. 18, 2017,
D072618) [nonpub. opn.].)
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DISPOSITION
The order denying Saldana’s petition for resentencing under
section 1172.6 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
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