People v. De La Cruz CA2/5 ( 2023 )

Filed 6/20/23 P. v. De La Cruz CA2/5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B312111
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA198877)
v.
JOSE DE LA CRUZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kathleen Kennedy, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, and Noah P. Hill, Deputy
Attorney General, for Plaintiff and Respondent.
In 2002, a jury convicted defendant and appellant Jose De
La Cruz of first degree murder. (Pen. Code, § 187, subd. (a)1.)
The jury found true the allegations that defendant personally
1 All further statutory references are to the Penal Code.
used and personally discharged a firearm. (§ 12022.53, subds. (b)
& (c).) The trial court sentenced defendant to 25 years to life plus
20 years in state prison. On October 8, 2003, a prior panel of this
division affirmed defendant’s judgment. (People v. De La Cruz
(Oct. 8, 2003, B158884) [nonpub. opn.].)
On March 20, 2020, defendant filed a petition for
resentencing pursuant to Senate Bill No. 1437 and former section
1170.95.2
On April 21, 2020, the trial court appointed counsel to
represent defendant.
On November 10, 2020, the Los Angeles County District
Attorney filed an opposition to defendant’s petition that included
as exhibits the appellate opinion referenced above and a
transcript of the jury instructions given at defendant’s trial. The
District Attorney argued, among other things, that defendant’s
petition failed to make a prima facie showing for relief because
the jury was not instructed on felony murder or the natural and
probable consequences doctrine.
On February 22, 2021, defendant filed a response to the
District Attorney’s opposition requesting that the trial court issue
an order to show cause and hold an evidentiary hearing. In his
response, defendant conceded the jury was not instructed on
felony murder or the natural and probable consequences doctrine,
but argued the jury was instructed on lying in wait murder which
“imputes malice, just like the natural and probable consequences
doctrine.”
2 Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6 with no change in text. (Stats.
2022, ch. 58, § 10.) Further references will be to the statute’s
current section number only.
2
At the April 8, 2021, hearing on defendant’s petition, the
trial court found there was no prima facie evidence that
defendant was entitled to relief. Rejecting defendant’s lying in
wait argument, it reasoned that jurors do not “find a lying in wait
special circumstance true unless [they] also are finding that the
person is lying in wait for the purpose of gaining an advantage
and—in committing the murder. [¶] And so this is a wholly
different kind of situation than a felony murder or a natural and
probable consequences theory.” (See § 189, subd. (a); People v.
Sandoval (2015) 62 Cal.4th 394, 416 [in addition to being a
special circumstance, lying in wait “is a means of proving first
degree murder. ‘Lying in wait is the functional equivalent of
proof of premeditation, deliberation, and intent to kill.’
[Citation.]”].)
We appointed counsel to represent defendant on appeal.
Counsel filed an opening brief in which she did not identify any
arguable issues and requested that we follow the procedure set
forth in People v. Wende (1979) 25 Cal.3d 436 and independently
review the record on appeal for arguable issues. On
September 21, 2021, we notified defendant that appointed
appellate counsel had filed a brief that raised no issues and he
had 30 days within which to brief independently any grounds for
appeal, contentions, or arguments he wanted us to consider.
Defendant did not file a supplemental brief.
On February 7, 2022, we dismissed defendant’s appeal as
abandoned. Our Supreme Court granted defendant’s petition for
review and transferred the case to us “with directions to vacate
[our] decision and reconsider whether to exercise [our] discretion
to conduct an independent review of the record or provide any
other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216,
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232–233 & fn. 6 [(Delgadillo)].” Defendant’s counsel then filed a
supplemental brief requesting that we conduct an independent
review of the record and send notice to defendant advising him of
his right to file a supplemental brief under the procedures set
forth in Delgadillo, supra, 14 Cal.5th 216. The Attorney General
filed a letter brief requesting that we either independently review
the record or send a notice to defendant that complies with
Delgadillo, ibid.We have elected to conduct an independent review of the
record (Delgadillo, supra, 14 Cal.5th at p. 232) and conclude that
defendant is not entitled to relief under section 1172.6. Here, the
jury was not instructed on and defendant was not convicted
under either a felony murder or natural and probable
consequences theory of murder. Nor was he convicted of murder
under another theory under which malice was imputed to him
based solely on his participation in a crime. Accordingly, he is
ineligible for relief as a matter of law. (People v. Daniel (2020) 57
Cal.App.5th 666, 677.)
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DISPOSITION
The trial court’s order denying defendant’s petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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