People v. Assid CA4/3

Filed 3/30/23 P. v. Assid CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061780
v. (Super. Ct. No. 99NF0465)
SALIM ASSID, JR., OPI NION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Lewis
Clapp, Judge. Affirmed.
Gene D. Vorobyov, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
The trial court denied defendant Salim Assid Jr.’s Penal Code section
1170.95 petition seeking to vacate his murder and attempted murder convictions (now
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Pen. Code, § 1172.6). The court ruled: “Based on [the jury] instructions and the jury’s
corresponding findings, it is clear that [Assid] was convicted as the actual killer and thus
would still be guilty of the offenses under current law.”
Assid filed a notice of appeal. Appointed appellate counsel filed an
opening brief raising no arguable issues. (See People v. Wende (1979) 25 Cal.3d 436(Wende).) Assid did not file a supplemental brief on his own behalf.
In the interests of justice, this court has reviewed the record and found no
arguable issues. (See People v. Delgadillo (2022) 14 Cal.5th 216, 230 [“if the appellate
court wishes, it may also exercise its discretion to conduct its own independent review of
the record in the interest of justice”].) Thus, we affirm the order of the trial court.
I
PROCEDURAL HISTORY
In November 2000, a jury convicted Assid of murder, attempted murder,
and shooting at an occupied motor vehicle. The jury found true various sentence
enhancements, including that Assid personally discharged a firearm. The trial court
imposed an aggregate sentence of 90 years to life. This court affirmed the judgment on
appeal. (People v. Assid (Mar. 6, 2003, G028531) [nonpub. opn.].)
In April 2022, Assid filed a petition seeking to vacate his murder and
attempted murder convictions and to be resentenced. (See § 1172.6.)
In June 2022, the prosecution filed a response, which included copies of the
charging document (the information), the jury instructions used in the 2000 trial, the
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Further undesignated statutory references are to the Penal Code. The Legislature
renumbered former section 1170.95 without substantive change, effective June 30, 2022.
(Stats. 2022, ch. 58, § 10.)
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verdict forms, and the underlying unpublished opinion.
In September 2022, the trial court conducted a prima facie hearing and
denied the petition: “Without reviewing the facts underlying petitioner’s conviction or
engaging in any factfinding, a review of the jury instructions and verdict forms alone
establishes that petitioner is ineligible for relief as a matter of law.”
Assid’s trial counsel filed a notice of appeal on his behalf.
II
DISCUSSION
When appointed counsel has identified no arguable issues on appeal, the
appellate court independently reviews the record for any arguable issues. (Wende, supra,
25 Cal.3d at pp. 441-442.) Generally, “an arguable issue on appeal consists of two
elements. First, the issue must be one which . . . is meritorious. That is not to say that
the contention must necessarily achieve success. Rather, it must have a reasonable
potential for success. Second, if successful, the issue must be such that, if resolved
favorably to the appellant, the result will either be a reversal or a modification of the
judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
Here, after independently reviewing the record, this court has similarly
found no arguable issues. The absence of jury instructions on the felony-murder rule
and/or the natural and probable consequences doctrine, as well as the jury’s true findings
on the personal use of a firearm, allegations confirm Assid is ineligible for relief under
section 1172.6 as a matter of law.
Thus, the trial court properly denied the petition under the relevant
provisions of section 1172.6. (See People v. Lewis (2021) 11 Cal.5th 952, 961-970.)
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III
DISPOSITION
The order is affirmed.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
DELANEY, J.
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