People v. Ornelas CA2/3 ( 2022 )

Filed 8/4/22 P. v. Ornelas 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B318147
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. A326664)
v.
ERNESTO ORNELAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lynne M. Hobbs, Judge. Affirmed.
Ernesto Ornelas, in pro per.; Law Offices of Allen G.
Weinberg and Derek K. Kowata, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Ernesto Ornelas 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.3
In 1977, a jury found Ornelas guilty of first degree murder
(§ 187, subd. (a); count 1) and of assault with a deadly weapon
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 Some Courts of Appeal have found Wende review
inapplicable to appeals from orders denying postconviction relief.
(See, e.g., People v. Cole (2020) 52 Cal.App.5th 1023, review
granted Oct. 14, 2020, S264278; People v. Serrano (2013) 211
Cal.App.4th 496; but see People v. Flores (2020) 54 Cal.App.5th
266, 274.) Cole, at pages 1039 to 1040, held that an appeal from
a postconviction order may be dismissed if counsel has found no
arguable issues and if the defendant has not filed a supplemental
brief. Where the defendant has filed a supplemental brief, the
Court of Appeal must evaluate any arguments raised in it and
issue a written opinion disposing of the trial court’s order on the
merits. As Ornelas has filed a supplemental brief, we accordingly
independently review the record and his contentions, without
deciding whether Cole is correct in part or whole. Further, our
Supreme Court is currently considering what procedures
appointed counsel and Courts of Appeal should follow when
counsel determines that an appeal from an order denying
postconviction relief lacks arguable merit. (People v. Delgadillo
(Nov. 18, 2020, B304441 [nonpub. opn.]), review granted Feb. 17,
2021, S266305.)
2
(§ 245, subd. (a); count 3).4 As to count 1, the jury found that
Ornelas used a gun under sections 1203.06, subdivision (a)(1),
and 12022.5, but as to count 3, the jury found he used a gun
under just section 12022.5. The trial court said it was sentencing
Ornelas to state prison “for the term prescribed by law” on both
counts, with the sentence on count 3 to run concurrently to count
1.
In 2021, Ornelas petitioned for resentencing under section
1172.6. The trial court appointed counsel to represent Ornelas.
The People opposed the petition on the ground that Ornelas’s jury
was not instructed on felony murder or the natural and probable
consequences doctrine. With the opposition, the People
submitted these exhibits: the information, a probation report,
and jury instructions. Ornelas’s counsel also submitted the jury
instructions. The parties submitted on the briefs, with Ornelas’s
counsel stating he could make no argument to support a prima
facie case and asking to be relieved as counsel. The trial court
found that Ornelas had not made a prima facie showing of
entitlement to relief and denied the petition.
This appeal followed. Court-appointed appellate counsel
filed an opening brief that raised no issues and asked this court
to independently review the record under Wende, supra, 25
Cal.3d 436. Ornelas filed a supplemental brief. Stating his
contentions as we understand them, Ornelas argues that
indeterminate sentencing statutes were repealed and therefore
his indeterminate sentence is unauthorized; his sentence is
unauthorized by statute; various changes in the law, including
modifications to parole deferrals, applied to him; he was not the
4 The record does not show what happened to count 2.
3
actual killer and therefore the principle under which he was
convicted is vague; and the presentation of his case violated due
process because his codefendant was willing to admit that he
(codefendant) was the actual killer.
To the extent Ornelas in his supplemental brief argues that
his petition for resentencing was improperly denied, Senate Bill
No. 1437 (2017–2018 Reg. Sess.) limited accomplice liability
under the felony-murder rule and eliminated the natural and
probable consequences doctrine as it relates to murder. (People v.
Lewis (2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10
Cal.5th 830, 842–843.) Ornelas’s jury, however, was not
instructed on either felony murder or the natural and probable
consequences doctrine. Nor do the instructions and jury verdict
show that Ornelas was convicted on a theory under which malice
was imputed to him. (§ 1172.6, subd. (a).) Instead, the jury
having found Ornelas guilty of first degree murder, it necessarily
found he acted with express malice and premeditation, making
him ineligible for resentencing under section 1172.6.
And as for Ornelas’s contention that his sentence was
otherwise unauthorized, he has not provided an adequate record
or argument to make that showing.
We have examined the record and are satisfied no arguable
issues exist and Ornelas’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.)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
EDMON, P. J.
We concur:
EGERTON, J.
ADAMS, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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