People v. Salinas CA2/2 ( 2021 )

Filed 1/14/21 P. v. Salinas CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B306475
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA077370-03)
v.
ALONDRA SALINAS,
Defendant and Appellant.
THE COURT:
Alondra Salinas (defendant) appeals the trial court’s denial
of her motion for relief under Penal Code section 1170.95.1 We
dismiss this appeal as abandoned.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
2
I. Facts
A. The underlying crime
In June 2013, defendant was romantically involved with
Kimberly Garcia (Garcia). Garcia’s brother had recently been
killed, and Garcia believed that Manuel Haro (Haro) and James
Posey (Posey) had been involved in his killing. Garcia shared her
belief with the “older homies” in her deceased brother’s gang, and
those “older homies” tasked Miguel Esquivias with “handl[ing]”
the issue by killing Haro and Posey. Defendant was aware of the
gang-sanctioned “hit,” and reassured Garcia in a text message
that “[w]e will make [Haro and Posey] pay for everything they did
. . . [a]nd ima [sic] be by your side the whole time.” On June 11,
2013, defendant and Garcia drove Esquivias to where Haro was
hanging out and after Esquivias put several fatal bullets in
Haro’s chest, drove Esquivias from the scene of the killing. Just
over a week later, defendant, Garcia and Esquivias bragged that
they had killed Haro and were “going to come and kill” Posey.
B. Prosecution, conviction and appeal
The People charged Esquivias, Garcia, and defendant with
Haro’s murder (§ 187, subd. (a)), and alleged firearm and gang
3
enhancements (§§ 12022.53, subd. (d), 186.22, subd. (b)).
Because defendant was not the shooter, the trial court instructed
the jury that the defendant was liable for murder only if she
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. Esquivias
(July 26, 2017, B268972) [nonpub. opn.].)
3 The People also charged defendant with other counts not
relevant to the issue before us.
2
directly aided and abetted Esquivias in murdering Haro; the
court did not instruct the jury on the natural and probable
consequences or felony-murder theories. The jury found
defendant guilty of second degree murder and found the gang and
firearm enhancements to be true. The trial court sentenced
defendant to prison for 40 years to life, comprised of a 15-year-to-
life base term for the second degree murder, plus a 25-year-to-life
firearm enhancement.
Defendant appealed her conviction and argued, among
other things, the evidence was insufficient to support her
conviction for aiding and abetting Esquivias and Garcia in
committing Haro’s murder. We rejected defendant’s arguments
and affirmed the conviction in an unpublished opinion.
II. Procedural Background
On April 24, 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that she had been
charged with murder, that she was convicted “pursuant to [the]
felony murder rule [or] the natural and probable consequences
doctrine,” and that her murder conviction would be invalid under
the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.” She also requested the appointment of counsel.
The People filed a response, arguing defendant did not
qualify for relief under the amended statute as she was not
convicted under a felony-murder or natural and probable
consequences theory, and also argued that section 1170.95 was
unconstitutional. Defendant filed a reply, arguing that she was
not a “significant aider and abett[or]” in Haro’s killing.
In a Memorandum of Decision filed on June 5, 2020, the superior
court denied defendant’s petition on the ground that defendant
3
was not convicted under a theory of felony murder or as an aider
and abettor under a natural and probable consequences theory
but as a direct aider and abettor, rendering her “ineligible for
relief under” section 1170.95.
Defendant filed this timely appeal.
DISCUSSION
Defendant’s appointed counsel filed an “Opening Brief” in
which no arguable issues are raised, and asks this court for an
independent review of the record as required by People v. Wende
(1979) 25 Cal.3d 436 (Wende).
Because defendant appeals from an order denying post-
conviction relief, the procedural protections established in Wende
do not apply. (People v. Cole (2020) 52 Cal.App.5th 1023 (Cole)
review granted Oct. 14, 2020, S264278.) In Cole, we recently held
that in a criminal appeal from a post-conviction order to
which Wende does not apply, after reviewing the record and
researching the law, counsel who find no arguable issues are
required to “file a brief with the Court of Appeal setting forth (1)
a brief statement of the pertinent procedural history of the case,
(2) a brief summary of the pertinent facts, (3) counsel’s
declaration that there are no reasonably arguable issues to
present on appeal, and (4) counsel’s affirmation that he or she
remains ready to brief any issues at the request of the Court of
Appeal.” (Cole, at p. 1038.) Counsel in this case fulfilled these
requirements.
Next, we explained that counsel and this court must notify
defendant of her right to file a brief on her own behalf. (Cole,
supra, 52 Cal.App.5th at p. 1039.) Both counsel and this court
did so.
Lastly, we explained that if the defendant does not file a
4
supplemental brief, the Court of Appeal may dismiss the appeal
as abandoned because “the order appealed from is presumed to be
correct” (Cole, supra, 52 Cal.App.5th at p. 1039), and “in the
absence of any arguments to the contrary, ineluctably leads to
the conclusion that the appellant has not carried his or her
burden of proving otherwise.” (Id. at p. 1040.)
Defendant did not file a supplemental brief. In accordance
with the procedures articulated above, we dismiss this appeal as
abandoned.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
——————————————————————————————
ASHMANN-GERST, Acting P. J., CHAVEZ, J., HOFFSTADT, J.
5