People v. Moreno CA4/2

• Court: California Court of Appeal
• Decided: September 19, 2024
• Docket: E083366
• Status: Unpublished

Opinion

Filed 9/19/24 P. v. Moreno CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent, E083366

v. (Super.Ct.No. FWV17000443)

SAUL ANDREWJUAN MORENO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,

Judge. Appeal dismissed.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant Saul Andrewjuan Moreno appeals from an order of the

San Bernardino County Superior Court denying his Penal Code section 1172.6 petition

for resentencing.1

BACKGROUND

In July 2019, defendant entered into a plea of guilty to charges of attempted

murder (§§ 187, subd. (a), 664, count 1) and assault with a firearm (§ 245, subd. (a)(2),

count 7). He admitted the attempted murder was willful, deliberate, and premeditated,

and also admitted a section 186.22, subdivision (b)(1)(c) gang enhancement as to count 1.

The parties stipulated the plea had a factual basis and the trial court sentenced defendant

to a total indeterminate term of 15 years to life for the attempted murder, with a

concurrent determinate mid-term of three years for the assault with a firearm.

In February 2024, the court denied defendant’s August 2023 section 1172.6

petition. Defendant timely noticed this appeal and we appointed counsel to represent

him.

1 Defendant’s petition was filed on a section 1170.95 petition form. Section 1170.95, which became effective January 1, 2019 (Sen. Bill No. 1437, Stats. 2018, ch. 1015, § 4), amended sections 188 and 189 to limit the reach of the felony-murder rule and to eliminate the natural and probable consequences doctrine in cases of first and second degree murder. The statute was amended effective January 1, 2022, to expand the provisions to include attempted murder (Sen. Bill No. 775, Stats 2021, ch. 551, § 2) and was later renumbered as section 1172.6 without change in the text (Assem. Bill No. 200, Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to the provision by its new numbering. All further statutory references are to the Penal Code.

2 DISCUSSION

Appointed appellate counsel filed an opening brief that sets forth statements of the

case and facts but does not present any issues for adjudication. Counsel cites our opinion

in People v. Griffin (2022) 85 Cal.App.5th 329, 335-336 and requests we exercise our

discretion under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) to conduct an

independent review of the record.

Counsel considered two issues: (i) whether defendant was ineligible for section

1172.6 relief as a matter of law, and (ii) whether the court erred by accepting defendant’s

admission that the attempted murder was willful, deliberate, and premeditated in view of

the absence of that allegation in the charging documents.

We notified defendant that (i) his counsel filed a brief stating no arguable issues

could be found, and (ii) this court may, but is not required, to conduct an independent

review of the record. (Delgadillo, supra, 14 Cal.5th at p. 216.) We invited defendant to

file within 30 days any supplemental brief deemed necessary and cautioned that failure to

timely file a supplemental brief might result in the dismissal of his appeal as abandoned.

Defendant did not file a brief.

Neither defendant or his counsel have presented an issue and upon our review of

the record, we do not find any error. Accordingly, we dismiss defendant’s appeal.

3 DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

McKINSTER J. FIELDS J.