Filed 5/27/22 P. v. Escobar CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE COURT:

Roel Adolfo Escobar appeals the order denying his petition for resentencing under Penal Code[1] section 1170.95. We appointed counsel to represent Escobar on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

BACKGROUND

In 1990, a jury convicted Escobar of the 1982 murders of Marian T. Evans and Antonio Cruz (§ 187, subd. (a); counts 1 & 2) and the attempted murder of Rogelio Cruz (§§ 664/187, subd. (a); count 3). The jury found both murders to be in the first degree and found true the allegations that Escobar personally used a firearm in the commission of the murders. (§ 12022.5.) The jury also found true the great bodily injury allegation as to count 3, attempted murder. (§ 12022.7.) Escobar’s sentence included a state prison term of life without parole.

On appeal, a prior panel of this division of the Court of Appeal affirmed the judgment. (People v. Escobar (Aug. 5, 1992, B054469) [nonpub. opn.] (Escobar I).)[2]

On March 18, 2021, Escobar filed a petition for resentencing under section 1170.95. The trial court appointed counsel for Escobar, and the prosecutor submitted documents for the trial court’s consideration, including: the information, preliminary hearing and sentencing transcripts, jury instructions, and Escobar’s clemency request.

Based on its review of the jury verdicts and preliminary hearing and sentencing transcripts,[3] the trial court ruled that Escobar is ineligible for section 1170.95 relief as a matter of law because the record shows that he was the actual killer.[4]

Escobar filed a timely notice of appeal, and we appointed appellate counsel for him. The opening brief set forth the procedural history of this case and included a declaration from appellate counsel indicating he had “read the entire appellate record,” had advised his client of “the nature of this brief,” and had informed his client of his right to file a supplemental brief. We also notified Escobar of his counsel’s brief and gave him leave to file, within 30 days, his own brief or letter setting forth any grounds for appeal, contentions, or arguments he might wish to have considered. To date, no such brief or letter has been filed.

DISCUSSION

Where appointed counsel finds no arguable issues in an appeal seeking postjudgment relief, the appellate court is not required to conduct an independent review for arguable issues. (People v. Cole (2020) 52 Cal.App.5th 1023, 1039–1040 (Cole), review granted Oct. 14, 2020, S264278; see People v. Serrano (2012) 211 Cal.App.4th 496, 503.) However, we do review any contentions or arguments made if appellant files his or her own supplemental brief or letter. (Cole, at p. 1040.)

Here, because neither appellate counsel nor Escobar himself has identified an issue warranting reversal, we may treat the appeal as abandoned. (Cole, supra, 52 Cal.App.5th at p. 1039.)

Although we have concluded, consistent with Cole, that dismissal is appropriate without more, we are mindful that our Supreme Court is currently deciding whether such a dismissal is appropriate or whether a further, independent examination of the record is instead required. (See People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb. 17, 2021, S266305.) Therefore, in an abundance of caution, we have independently examined the entire record and are satisfied that Escobar’s appellate counsel has fully complied with his responsibilities and that no arguable issues exist. (Wende, supra, 25 Cal.3d at pp. 441–443.)

Based on its review of the preliminary hearing and sentencing transcripts and the jury verdicts, the trial court denied Escobar’s section 1170.95 petition on the ground that Escobar was the “sole and actual killer.” The record in Escobar I confirms the trial court’s conclusion. First, in finding Escobar guilty on two counts of first degree murder, the jury specifically found the allegation that he had personally used a firearm to be true. The jury was also not instructed on felony-murder or natural and probable consequences. Finally, the statement of facts in the Escobar I appellate decision leaves no ambiguity about Escobar’s role as the sole perpetrator who broke into the victims’ home carrying a rifle and shot three people, killing two of them by firing at close range. There was no codefendant, and no offense other than the two murders and one attempted murder that might be deemed a target offense for any theory of vicarious liability.

At the hearing on the petition, Escobar’s counsel did not argue any theory under which Escobar might be eligible for relief.

Under these circumstances, the trial court correctly determined that Escobar is ineligible for relief under section 1170.95 as a matter of law.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

LUI, P. J. CHAVEZ, J. HOFFSTADT, J.

[1] Undesignated statutory references are to the Penal Code.

[2] We take judicial notice of the record on appeal filed in this court in Escobar I, as well as this court’s unpublished opinion in that matter. (Evid. Code, §§ 451, subd. (a), 452, subd. (d), 459, subd. (a); People v. Vizcarra (2015) 236 Cal.App.4th 422, 426, fn. 1.)

[3] In its Memorandum of Decision, the trial court stated that it did not consider the petition for clemency or the jury instructions proffered by the People, which did not appear to be the actual instructions given at trial. However, the jury instructions are included in the record on appeal in Escobar I, supra, B054496, of which we have taken judicial notice. Finally, the parties have not provided this court with the preliminary hearing transcript, nor was it included in the record in Escobar I.

[4] In its Memorandum of Decision, the trial court noted that Escobar had signed the petition under penalty of perjury, but had left unchecked the box stating that he was not the actual killer.