Filed 4/5/22 P. v. Chaparro CA2/3

not to be published in the official reports

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

INTRODUCTION

Adrian Armando Chaparro appeals from an order denying his petition for resentencing under Penal Code[1] section 1170.95. His appellate counsel filed a brief asking this court to proceed under People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm.

background

This matter arises out of events occurring on January 1, 1999 when Chaparro shot and killed his girlfriend, Patricia Ayala, after they attended several New Year’s Eve parties. Following a jury trial in 2001, Chaparro was convicted of first degree murder (§ 187). The jury found true the allegations that Chaparro personally and intentionally discharged a firearm which proximately caused Ayala’s death (§ 12022.53, subds. (b)–(d); § 12022.5, subd. (a)(1)). The jury also found true the allegation that Chaparro committed the murder during a kidnapping (§§ 207, 190.2, subd. (a)(17)). The trial court sentenced him to life imprisonment without the possibility of parole for the murder conviction. A different panel of this court affirmed the judgment in 2003. (People v. Chaparro (May 29, 2003, B151898) [nonpub. opn.].)

Years later, our Legislature enacted Senate Bill No. 1437, which took effect on January 1, 2019 and added section 1170.95. That new law “ ‘amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ ” (People v. Gentile (2020) 10 Cal.5th 830, 842.)

On July 12, 2021, Chaparro, representing himself, filed a three-page form petition for resentencing under section 1170.95. He requested the appointment of counsel for the resentencing process. On the form, Chaparro checked Boxes 2a and 3 which alleged he was convicted of first or second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine, and his murder conviction is no longer valid because of changes made to sections 188 and 189. A defendant is to check Box 5 if he has been convicted of first degree felony murder but could not now be convicted of that crime for enumerated reasons, and Box 6 if convicted of second degree murder under the felony murder or the natural and probable consequences doctrine but could not now be convicted of that crime. Chaparro did not check Box 5 or Box 6. In addition, Chaparro left unchecked all the boxes under Box 5, including the box indicating that he “was not the actual killer.” On August 11, 2021, Chaparro filed a document titled “Amendment/Supplement” to the petition for resentencing where he alleged that he was “heavily intoxicated and had a ‘blackout’ and legally incapable of having committed the crime.”[2]

The trial court appointed counsel for Chaparro and ordered the People to respond to the petition. In their written opposition to the petition, the People argued the record of conviction established that Chaparro was the actual killer. In his reply, Chaparro—now represented by counsel—argued that, based on his petition, he made the necessary prima facie showing of entitlement to relief and asked the court to issue an order to show cause as provided by section 1170.95.

In ruling on the petition, the trial court stated that it not engage in factfinding and did not weigh the evidence. After considering the court file, including the jury instructions and jury findings, the court denied the petition on October 8, 2021. The court explained that because the jury found Chaparro “was the sole and actual killer in this case,” he “is ineligible for relief under Penal Code section 1170.95 as a matter of law.”

Chaparro filed a timely notice of appeal. On February 7, 2022, appointed counsel filed a brief in which counsel raised no issues and asked us to review the record independently under Wende, supra, 25 Cal.3d 436. This court notified Chaparro that his attorney had failed to find any arguable issues and that he could submit by brief or letter any arguments he wished this court to consider. We have not received a response.

DISCUSSION

In light of the jury’s verdict and findings, and the court’s instructions, Chaparro’s first degree murder conviction necessarily reflected a finding that he was Ayala’s actual killer. Because Chaparro was convicted as the actual killer, he is ineligible for relief under section 1170.95 as a matter of law. (See § 1170.95, subd. (a)(3) [petitioner is eligible for relief only if, inter alia, “[t]he petitioner could not [now] be convicted of first or second degree murder because of changes to Section 188 or 189 made [by Senate Bill No. 1437]”]; People v. Lewis (2021) 11 Cal.5th 952, 959 [“the Legislature passed Senate Bill 1437 ‘to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who [inter alia] is not the actual killer’ ”].)

We have examined the entire record, and are satisfied appellate counsel has fully complied with counsel’s responsibilities and no arguable issues exist in the appeal before us. (Smith v. Robbins (2000) 528 U.S. 259, 278–284, Wende, supra, 25 Cal.3d at p. 443.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

KIM, J.*

[1] All undesignated statutory references are to the Penal Code.

[2] Although filed on August 11, 2021, the document was dated September 5, 2021. As for Chaparro’s contention, the jury was instructed with CALJIC Nos. 4.21.1 and 4.22 concerning voluntary intoxication. CALJIC No. 4.21.1 instructed the jury that it should consider Chaparro’s voluntary intoxication in deciding whether he possessed the required specific intent or mental state at the time of the commission of the alleged crimes.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.