Filed 4/20/21 P. v. Cabrera CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Allen J. Webster, Jr., Judge. Affirmed.

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

No appearance for Plaintiff and Respondent.

In 2006, a jury found defendant and appellant Bryan Cabrera guilty of first degree murder (Pen. Code, § 187, subd. (a))[1] and found true the allegation that a principal personally and intentionally discharged a firearm which proximately caused great bodily injury and death (§ 12022.53, subds. (d) and (e)(1)) and that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(A)). The trial court sentenced defendant to 50 years to life in state prison. On January 18, 2008, a prior panel of this division affirmed defendant’s conviction (People v. Cabrera (Jan. 18, 2008, B194832) [nonpub. opn.]) and denied defendant’s petition for writ of habeas corpus (In re Cabrera (Jan. 18, 2008, B200864) [nonpub. opn.].)

On August 5, 2019, defendant filed a petition to vacate his murder conviction and for resentencing pursuant to section 1170.95. On August 16, 2019, the trial court denied defendant’s petition, finding that defendant could not make a prima facie showing that he was eligible for relief “because he was not prosecuted under either a felony murder or a natural and probable consequence theory of culpability. The jury determined he was a direct aider and abettor to the murder.” Defendant timely filed a notice of appeal.

Defendant’s appointed appellate counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436, requesting that we independently review the entire record to determine if there are any arguable issues. On December 8, 2020, we notified defendant that appointed appellate counsel had failed to find any arguable issues and that he had 30 days within which to independently brief any grounds for appeal, contentions, or arguments he wanted us to consider.

On January 13, 2021, defendant filed a supplemental brief in which he contended that certain evidence introduced at his trial was obtained through police threats, harassment, and manipulation. He also cited the Fourth Amendment of the United States Constitution but did not articulate how, if at all, his rights were violated. Finally, he raised certain challenges to the jury instructions in his first trial.

The prior panel opinion considered and rejected defendant’s contention that his counsel rendered ineffective assistance by failing to challenge the admissibility of evidence as the product of coercion. The court concluded that any such objection would have been futile because, among other things, the officers did not use deception that would render a statement involuntary and did not make any threats or promises. (People v. Cabrera, supra, B194832.) Even if meritorious—and it is not—defendant’s challenge to the introduction of evidence in his prior trial is not cognizable on an appeal of the trial court’s order denying defendant’s petition for resentencing under section 1170.95. As to defendant’s undeveloped Fourth Amendment challenge, it also is not cognizable on appeal from the trial court’s order. Finally, as to defendant’s challenges to the jury instructions, the opinion on direct appeal previously rejected each argument. (People v. Cabrera, supra, B194832.) We do not reconsider defendant’s arguments here.

We have reviewed the record and are satisfied that defendant’s appointed appellate counsel has fully complied with his responsibilities and no arguable issues exist. (See People v. Cole (2020) 52 Cal.App.5th 1023, 1039–1040, review granted Oct. 14, 2020, S264278; People v. Serrano (2012) 211 Cal.App.4th 496, 503; People v. Wende, supra, 25 Cal.3d at p. 441.) The jury was not instructed on a natural and probable consequences or felony-murder theory of liability, and defendant therefore could not demonstrate eligibility for relief under section 1170.95 as a matter of law. (People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review granted July 22, 2020, S262835.)

DISPOSITION

The order denying defendant’s petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.

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