People v. Armendariz CA2/5 ( 2024 )

Filed 1/25/24 P. v. Armendariz CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, B329819
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. TA092537)
DAVID ARMENDARIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Affirmed.
Jeanine G. Strong, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
A jury convicted defendant and appellant David
Armendariz (defendant) and his codefendant Jonathan Juarez of
first degree murder. The facts adduced at trial demonstrated
Juarez was the shooter in the gang-related killing; defendant
aided and abetted the murder.
The jury found a gang enhancement attached to the murder
charge true and the trial court found defendant had suffered two
prior Three Strikes law convictions and two prior convictions
within the meaning of Penal Code section 667(a)(1).1 The court
sentenced defendant to a total of 85 years to life in prison. In
2010, this court affirmed defendant’s conviction on direct appeal.
Years later, defendant petitioned for resentencing pursuant
to section 1172.6 (former section 1170.95). After appointing
counsel and receiving briefs from the People and defendant, the
trial court held a hearing and denied the petition based on its
finding that defendant did not present a prima facie case for
relief. The court found the jury instructions given at defendant’s
trial revealed he was convicted of express malice, first degree
murder.2
Defendant appealed, and this court appointed counsel to
represent him. After examining the record, defendant’s attorney
filed an opening brief raising no issues and asking that we follow
the procedures set forth in People v. Delgadillo (2022) 14 Cal.5th
216. We invited defendant to submit a supplemental brief.
1
Statutory references that follow are to the Penal Code.
2
The appellate record establishes the jury was not
instructed on either felony murder or the natural and probable
consequences doctrine.
2
Defendant submitted a two-page letter in response that (1)
requests an evidentiary hearing because a set of car keys were
never tested for DNA, (2) states his lawyer never gave him the
option to choose whether he wanted a jury or bench trial, and (3)
contends he is unable to pay victim restitution fees ordered as
part of his sentence. We limit our consideration to these issues.
(Delgadillo, 14 Cal.5th at 232 [where a defendant’s attorney finds
no arguable issues in an appeal from the denial of a section
1172.6 petition and the defendant files a supplemental brief, “the
Court of Appeal is required to evaluate the specific arguments
presented in that brief and to issue a written opinion,” but the
question of whether to conduct an independent review of the
entire record is “wholly within the court’s discretion”].)
None of the arguments raised in defendant’s supplemental
brief addresses his eligibility for resentencing under section
1172.6. DNA testing, the question of a jury or bench trial, and
restitution fees have no bearing on whether defendant could
“presently be convicted of murder or attempted murder because
of changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1172.6(a)(3).) Defendant’s arguments accordingly provide no
basis for reversal. (See, e.g., People v. DeHuff (2021) 63
Cal.App.5th 428, 438 [section 1172.6 “does not permit a petitioner
to establish eligibility on the basis of alleged trial error”].)
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DISPOSITION
The trial court’s order denying defendant’s section 1172.6
petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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