People v. Navarro CA1/3

Filed 1/12/23 P. v. Navarro CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff and Respondent, A165489
v.
(Solano County
JORGE LEON NAVARRO, Super. Ct. No. FCR302303)
Defendant and Appellant.
Defendant Jorge Leon Navarro appeals from a May 4, 2022 order
denying his petition for resentencing of his attempted murder conviction
under Penal Code1 former section 1170.95, now section 1172.6.2 We affirm.
Section 1172.6 allows a defendant to petition for resentencing if
convicted of attempted murder under the now invalid natural and probable
consequences theory. (Id., subd. (a).) At the hearing held on Navarro’s
petition, his assigned counsel confirmed that a review of the record of
1 All undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, the Legislature renumbered section 1170.95 to
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive
changes to the statute. Throughout this opinion, we cite to section 1172.6 for
ease of reference.
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conviction — including the court’s jury instructions — reflected that Navarro
was not convicted of attempted murder under the natural and probable
consequences theory. After the trial prosecutor concurred with assigned
counsel’s assessment of the record, the superior court summarily denied the
petition on the basis that Navarro was not statutorily eligible for section
1172.6 relief.
Navarro’s appellate counsel has filed a brief raising no issues and asks
us to independently review the record under People v. Wende (1979) 25 Cal.3d
436 (Wende).3 Appellate counsel has further confirmed that Navarro was
informed of his right to file a supplemental brief, but he has not filed such a
brief.
Since the completion of the briefing in this appeal, our Supreme Court
decided People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) on December
19, 2022. Delgadillo holds that when appointed counsel determines that an
appeal from an order denying postconviction relief, such as the order denying
Navarro’s section 1172.6 petition, lacks arguable merit, “Wende procedures
are not constitutionally compelled.” (Delgadillo, supra, 14 Cal.5th at p. 233.)
However, “[w]hen counsel submits notice that such an appeal lacks arguable
merit, the Court of Appeal should provide notice to the defendant that
counsel was unable to find any arguable issues; the defendant may file a
supplemental brief or letter raising any argument the defendant wishes the
court to consider; and if no such supplemental brief or letter is timely filed,
the court may dismiss the appeal as abandoned.” (Id. at p. 222.) “If the
3 To facilitate this review, we grant appellate counsel’s motion to
augment the record to include certain portions of the trial transcripts filed on
Navarro’s direct appeal of his conviction, which include the jury instruction
discussion and the jury instructions given at trial. (People v. Navarro (dec.
Sept. 19, 2019, A151606) [nonpub. opn.].)
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appeal is dismissed as abandoned, the Court of Appeal does not need to write
an opinion but should notify the defendant when it dismisses the matter.”
(Id. at p. 232.)
Because the briefing in this case was completed in September 2022,
Navarro was not given Delgadillo notice that this court might dismiss the
appeal as abandoned if he failed to file a supplemental brief. In the interest
of judicial economy, we exercise our discretion to independently review the
record. (Delgadillo, supra, 14 Cal.5th at p. 232 [“[w]hile it is wholly within
the court’s discretion, the Court of Appeal is not barred from conducting its
own independent review of the record in any individual section 1172.6
appeal”].)
Having independently reviewed the record, we find no arguable issues
that warrant further briefing by appellate counsel. The record reflects that
at trial the jurors were instructed that to convict Navarro of attempted
murder they had to find he had the specific intent to murder the victim when
he chose to aid and abet the perpetrator of the attempted murder. Because
Navarro was not convicted of attempted murder under the natural and
probable consequences theory, the superior court properly determined he was
statutorily ineligible for section 1172.6 relief. Accordingly, the order denying
the petition for resentencing is affirmed.
DISPOSITION
The May 4, 2022 order denying the petition for resentencing is
affirmed.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Fujisaki, J.
A165489/People v. Navarro
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