Filed 8/27/20 P. v. Luciozamudio 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


 THE PEOPLE,

      Plaintiff and Respondent,                                          G058851

           v.                                                            (Super. Ct. No. 11NF3721)

 EDGAR SALVADOR LUCIOZAMUDIO,                                            OPINION

      Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Kimberly Menninger, Judge. Affirmed.
                   Edward J. Haggerty, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.


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              Defendant Edgar Salvador Luciozamudio, appeals from the trial court’s
summary denial of his petition for resentencing (Petition) under Penal Code section
1170.95 (section 1170.95), enacted as part of Senate Bill 1437 (SB 1437).
              In 2014, a jury convicted defendant of second degree murder, and the trial
court sentenced him to 15 years to life in prison.
              In 2019, defendant filed the Petition seeking resentencing. The trial court
denied the Petition stating: “The petition does not set forth a prima face case for relief
under the statute. A review of court records indicates defendant is not eligible for relief
under the statute because the defendant 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. ‘The court
shall review the petition and determine if the petitioner has made a prima facie case
showing that the petitioner falls within the provisions of this section.’ (Pen. Code,
Section 1170.95(c).)”
              We appointed counsel to represent defendant on appeal. Counsel filed a
brief summarizing the proceedings and facts of the case and advised the court he found
no arguable issues to assert on defendant’s behalf. (Anders v. California (1967) 386 U.S.
738; People v. Wende (1979) 25 Cal.3d 436.) Counsel and this court notified defendant
he could file a supplemental brief on his own behalf. However, we received no
supplemental brief from him and the time to file one has passed.
              To assist us in our independent review, counsel suggested we consider the
following issues:
              1. Did the trial court err by failing to appoint counsel for defendant to
litigate his eligibility for relief under SB 1437?
              2. Did the trial court deny defendant his statutory right to present
additional legal argument and evidence by summarily denying the Petition based on its
review of the court file?

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              3. Did the lower court err by conducting the hearing on the Petition outside
his presence and by failing to obtain a waiver of his right to be present at that hearing?
              4. Did the failure to follow the procedures outlined in section 1170.95 and
the resulting denial of the Petition constitute prejudicial error?
                                       DISCUSSION
              We have independently reviewed the record according to our obligations
under Anders v. California, supra, 386 U.S. 738 and People v. Wende, supra, 25 Cal.3d
436, but found no arguable issues on appeal, including the issues suggested by counsel.
              SB 1437 was enacted to “‘amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder . . . .’” (People v. Martinez
(2019) 31 Cal.App.5th 719, 723, quoting Stats. 2018, ch. 1015, § 1, subd. (f).) SB 1437
added section 1170.95, which allows those “convicted of felony murder or murder under
a natural and probable consequences theory . . . [to] file a petition with 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).)
              We affirmed defendant’s conviction on direct appeal. (People v. Zamudio
(May 27, 2015, G049889) [nonpub. opn.].) Our opinion recites a lengthy description of
the evidence presented to the jury upon which it found beyond a reasonable doubt that
defendant murdered Ricardo Rios as a direct perpetrator. The record proves defendant
was neither prosecuted nor convicted of felony murder or murder under a natural and
probable consequences theory. Thus, we conclude the court correctly determined, based
on the record of conviction in defendant’s case and contrary to the Petition, that
defendant was not eligible for relief under section 1170.95 as a matter of law.
              The trial court did not err by failing to appoint counsel for defendant to
litigate his eligibility for relief under section 1170.95, or by summarily denying the
Petition based on its review of the court file. (People v. Verdugo (2020) 44 Cal.App.5th
320, 327-333, review granted Mar. 18, 2020, S260493.)

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              The trial court did not “conduct any hearing” on the Petition outside
defendant’s presence. Instead it considered the Petition as chambers work, without any
appearances, and based on its review of the Petition and the court file. So the trial court
did not err by failing to obtain a waiver of defendant’s right to be present.
              In sum, the trial court followed the procedures outlined in section 1170.95.
Thus, counsel’s assessment there were no arguable issues to raise was manifestly correct.
And nothing revealed by our own independent review of the record suggests otherwise.
                                       DISPOSITION
              The order is affirmed.


                                                  THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.




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