Filed 8/28/20 P. v. Cardenas 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,                                          G058311

           v.                                                            (Super. Ct. No. 07CF2192)

 MARCOS JAVIER CARDENAS                                                  OPINION

      Defendant and Appellant.




                   Appeal from a judgment of the Superior Court of Orange County, Kimberly
Menninger. Affirmed.
                   David P. Lampkin, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Xavier Becerra, Attorney General, and Annie Featherman Fraser, Deputy
Attorney General, for Plaintiff and Respondent.
              We appointed counsel to represent Marcos Javier Cardenas on appeal.
Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his
client but advised the court he found no issues to argue on Cardenas’s behalf.
              Counsel filed a brief following the procedures outlined in People v. Wende
(1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that
sets forth a summary of proceedings and facts but raises no specific issues. Under these
circumstances, the court must conduct an independent review of the entire record. When
the appellant himself raises specific issues in a Wende proceeding, we must expressly
address them in our opinion and explain why they fail. (People v. Kelly (2006)
40 Cal.4th 106, 110, 120, 124.)
              Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the
court with its independent review, counsel provided the court with information as to
issues that might arguably support an appeal. Counsel raised one issue: (1) did the trial
court err by failing to appoint counsel to represent Cardenas pursuant to Penal Code
section 1170.95, subdivision (c)? We gave Cardenas 30 days to file written argument on
his own behalf. Thirty days have passed, and Cardenas has not filed any written
argument.
              Upon our independent review of the record as required by Wende and at
counsel’s suggestion pursuant to Anders, we identified an issue which, if resolved
favorably to appellant, could result in reversal of the judgment. We invited the parties to
file supplemental letter briefs addressing the question of whether under the facts of this
case, did the court err by failing to appoint counsel after Cardenas requested the court
appoint counsel for him during the resentencing process. We determined Cardenas was
not entitled to counsel and found no other arguable issues on appeal. We affirm the
judgment.



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                                           FACTS
              In 2008, an information charged Cardenas, and codefendants Joseph
Anthony Oceguera and Santos J. Gomez, with the murder of Rogelio Briseno Borjas
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(Pen. Code, § 187, subd. (a), count 1) with special circumstances of felony
murder/robbery (§ 190.2, subd. (a)(17)(A)), and murder committed to further the
activities of a criminal street gang (§ 190.2, subd. (a)(22)), and street terrorism
(§ 186.22, subd. (a), count 2). As to count 1, the information alleged that in the
commission of the murder a principal intentionally discharged a firearm causing death
(§ 12022.53, subd. (d), (e)(1)), and the offense was committed for the benefit of a
criminal street gang.
              One summer afternoon in 2007, Borjas was watching a movie with his wife
and son when an intruder entered the home and fired a shot into the ceiling. Borjas’s
wife quickly grabbed their son and ran out of the house. Once she made sure their son
was safely outside, she went back inside the house. From behind a wall, she watched her
husband wrestle with the intruder. The family dog bit the man in the leg, and Borjas
managed to knock the assailant’s gun to the ground. However, Borjas tripped over a rug
and fell to the floor. His wife saw the hand, arm, and gun of a second intruder come
around the front door and fire several shots. The first intruder retrieved his gun and shot
Borjas several times before both assailants fled the scene. Borjas died as a result of
multiple gunshot wounds. Gomez was arrested within days of the murder. Gomez said
he had been an involuntary wheelman in the crime and identified Cardenas and Oceguera


1
             The facts are presented in greater detail in this court’s prior nonpublished
opinion. (People v. Oceguera et al. (Nov. 30, 2012, G045222) [nonpub. opn.].)
2
              All further statutory references are to the Penal Code, unless otherwise
indicated.

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as the shooters. Two weeks later, Borja’s wife identified Cardenas as the first intruder
and the person who shot her husband.
              At trial, under a grant of immunity, Gomez testified that about 10 minutes
after he dropped Cardenas and Oceguera off at the victim’s residence, he saw Cardenas
draw his gun and push his way into the victim’s home. Gomez then heard several
gunshots before the two men ran back to the car. As the car sped off, Gomez noticed
blood on Cardenas’ shirt, pants, and shoes. Cardenas told Gomez that a dog bit him.
              The trial court instructed the jury it could find Cardenas guilty of first
degree murder with malice aforethought and under the theory of felony murder. The jury
found Cardenas guilty of first degree murder and found true the gang special
circumstance allegation and the firearm allegation. But the jury found the felony-murder
special circumstance not true.
              In August 2019, Cardenas filed his section 1170.95 petition. The petition
included a request the trial court appoint counsel for Cardenas. On the same day the
petition was filed, the court in chambers, with no party present and without appointing
counsel for Cardenas, denied the petition for resentencing on the ground Cardenas “does
not stand convicted of murder or defendant’s murder conviction(s) is not based on
felony-murder or on a natural and probable consequences theory of vicarious liability for
aiders and abettors.” Cardenas filed a timely notice of appeal.
                                       DISCUSSION
              We apply a de novo standard of review to a lower court’s denial of a
defendant’s section 1170.95 petition. (People v. Verdugo (2020) 44 Cal.App.5th 320,
328, fn. 8, review granted Mar. 18, 2020, S260493 (Verdugo); cf. People v. Blackburn
(2015) 61 Cal.4th 1113, 1123 [statutory construction questions reviewed de novo].)
              Section 1170.95 , subdivision (a), allows those “convicted of felony murder
or murder under a natural and probable consequences theory . . . [to] file a petition with

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the court that sentenced the petitioner to have the petitioner’s murder conviction vacated
and to be resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a), italics
added.) Section 1170.95, subdivision (c), provides a trial court upon receiving such a
petition shall review the petition and determine if the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this section. “A prima facie
showing is one that is sufficient to support the position of the party in question.
[Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) If the
petitioner has requested counsel, the court shall appoint counsel to represent the
petitioner.
              Here, the minute order was not specific, but we infer the trial court found
Cardenas was statutorily ineligible for relief because he was not convicted of murder
based on a felony murder theory of liability.
              In his supplemental letter brief, Cardenas asserts that in determining
whether petitioner has made a prima facie showing of eligibility for relief, the trial court
is limited to a review of the petition only. For this assertion Cardenas relies on the
dissent in People v. Tarkington (2020) 49 Cal.App.5th 892 (dis. opn. of Lavin, J.)
(Tarkington). The Attorney General counters relying on Verdugo, in which the court
held the petitioner’s ineligibility for resentencing under section 1170.95 can be
established as a matter of law from the record. (Verdugo, supra, 44 Cal.App.5th at
p. 333.) We conclude the Attorney General has the better argument.
              If the record of conviction before the court shows a petitioner is ineligible
for relief under section 1170.95 as a matter of law, it may summarily deny the petition.
(Tarkington, supra, 49 Cal.App.5th at pp. 900-902; People v. Cornelius (2020)
44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 [court may deny petition
without appointing counsel where petitioner is indisputably ineligible for relief as a direct
perpetrator of second-degree murder.)

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              Here, the finding Cardenas was ineligible for relief was based on a simple
application of the statute. Cardenas was not entitled to Senate Bill No. 1437 relief
because he was not convicted under a felony murder theory as indicated in the verdict
forms. The jury found the felony murder special circumstance not true. Under the
circumstances of this case, the trial court was not required to appoint counsel. There was
no error.
                                      DISPOSITION
              The judgment is affirmed.




                                                 O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




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