Opinion
B327437
04-09-2024
THE PEOPLE, Plaintiff and Respondent, v. IVAN LOZANO, Defendant and Appellant.
Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA361087, Larry P. Fidler, Judge. Affirmed.
Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MARTINEZ, J.
Ivan Lozano appeals from a postjudgment order summarily denying his petition for resentencing under Penal Code section 1172.6. No arguable issues have been identified by Lozano's appointed appellate counsel following his review of the record or by Lozano in his supplemental letter brief to this court. We affirm.
All undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Convictions and Sentencing
In 2013 a jury convicted Lozano of two counts of conspiracy to commit murder (§ 182, subd. (a)(1); counts 5 & 14), three counts of active participation in a criminal street gang (§ 186.22, subd. (a); counts 7, 15 & 16), and one count of carrying a loaded firearm in public by an active participant in a criminal street gang (former § 12031, subd. (a)(1); count 6). As to both counts of conspiracy to commit murder, the jury found true the allegation that the conspiracies were committed for the benefit of, at the direction of, and in association with a criminal street gang with a specific intent to promote, further and assist in criminal conduct by gang members. The trial court sentenced Lozano to consecutive indeterminate prison terms of 25 years to life on the two counts of conspiracy to commit murder, dismissed count 7 pursuant to section 1385, and imposed and stayed the sentences on the remaining counts and enhancements. On appeal, this court reversed the conviction on count 16 and otherwise affirmed the judgment. (People v. Roman (May 9, 2018), B267330 [non-pub. opn.].)
B. Petition for Resentencing
On November 2, 2022 Lozano filed a form petition for resentencing pursuant to former section 1170.95 (now § 1172.6). He checked all of the boxes on the form indicating his eligibility for relief, including the box requesting appointment of counsel, and he attached a copy of his abstract of judgment. The abstract of judgment did not show a conviction for murder, attempted murder, or manslaughter. On December 5, 2022, without appointing counsel, the superior court summarily denied Lozano's petition because he "was not convicted of any of the crimes listed in Penal Code section 1170.95 (P.C. 1172.6) and is not eligible for relief."
Lozano timely appealed. We appointed counsel to represent Lozano in this appeal. After a review of the record, Lozano's appellate counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) stating he did not identify any arguable issues and advised Lozano he could submit a supplemental brief identifying contentions this court should consider. On January 19, 2024 Lozano filed a supplemental brief.
DISCUSSION
A. Senate Bill No. 1437 and Section 1172.6
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); see People v. Reyes (2023) 14 Cal.5th 981, 984.) Senate Bill 1437 also provided a procedure in section 1170.95, now codified in section 1172.6, for an individual convicted of felony murder or murder under the natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if the individual could not have been convicted of murder under Senate Bill 1437's changes to sections 188 and 189. (Lewis, supra, 11 Cal.5th at p. 959.)
Section 1172.6 applies to petitioners "convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder." (§ 1172.6, subd. (a)(2).) If the section 1172.6 petition contains all the required information, including a declaration by the petitioner that he or she is eligible for relief based on the requirements of subdivision (a), the sentencing court must appoint counsel to represent the petitioner upon his or her request pursuant to section 1172.6, subdivision (b)(3). Further, upon the filing of a facially sufficient petition, the court must determine whether the petitioner has made a prima facie showing of entitlement to relief. (See § 1172.6, subd. (c).) Where a petitioner makes the requisite prima facie showing the petitioner falls within the provisions of section 1172.6 and is entitled to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and resentence the petitioner on any remaining counts. (See § 1172.6, subds. (c), (d)(1).)
B. Lozano Is Ineligible for Relief as a Matter of Law
As a threshold issue, we observe that the superior court summarily denied Lozano's petition for resentencing without appointing counsel. Although Lozano does not raise this argument, the superior court erred because Lozano filed a facially sufficient form petition and requested the appointment of counsel. (See Lewis, supra, 11 Cal.5th at p. 963 ["petitioners who file a complying petition requesting counsel are to receive counsel upon the filing of a compliant petition"].) We conclude the superior court's error was harmless because Lozano is ineligible for relief as a matter of law (as further explained below). (Id. at pp. 957-958, 973-974 [failure to appoint counsel for a petitioner at the prima facie review stage is reviewed under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818]; Delgadillo, supra, 14 Cal.5th at p. 227 ["the right to counsel at that point in the proceedings is purely statutory"].) As Lewis explained, "[A] petitioner 'whose petition is denied before an order to show cause issues has the burden of showing "it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing."'" (Lewis, at p. 974.) There is no reasonable probability that, had the superior court appointed counsel, Lozano would have avoided a summary denial.
The record of conviction establishes that Lozano was not convicted of murder, attempted murder, or manslaughter, a statutory requirement to be eligible for relief. (See § 1172.6, subd. (a)(2).) Accordingly, the superior court correctly denied the petition because section 1172.6 does not apply to Lozano as a matter of law. (People v. Whitson (2022) 79 Cal.App.5th 22, 34-36 ["neither the words of [former] section 1170.95 nor the Legislature's stated purpose support the view that the statute applies to a conspiracy to murder conviction"].)
Lozano's supplemental brief does not raise any meritorious issues. He references People v. Banks (2015) 61 Cal.4th 788, but he fails to explain how Banks applies to his case. In Banks, at page 803, the Supreme Court identified factors that courts should consider in determining whether a defendant was a "major participant" for a felony-murder special-circumstance finding under section 190.2, subdivision (d). Again, Lozano was not convicted of murder, nor was there a felony-murder special-circumstance finding in his case.
Lozano also argues his appellate counsel was ineffective for failing to timely file an opening brief and seeks to replace counsel. We granted Lozano's appellate counsel an extension to file the opening brief due to a medical emergency, and the brief subsequently filed was therefore timely. Further, given our conclusion that Lozano is ineligible for resentencing as a matter of law, he cannot establish prejudice based on a claim of ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 697 ["a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies"]; In re Clark (1993) 5 Cal.4th 750, 766 [prejudice requires "a reasonable probability that a more favorable outcome would have resulted" absent counsel's alleged incompetence], superseded by statute on other grounds as stated in In re Friend (2021) 11 Cal.5th 720, 728-729.)
No cognizable legal issues have been raised by Lozano's appellate counsel or by Lozano. Further, we have independently reviewed the record and are satisfied no arguable issue exists. (See Delgadillo, supra, 14 Cal.5th at pp. 231-232; see generally People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order denying Lozano's section 1172.6 petition is affirmed.
We concur: SEGAL, Acting P. J., FEUER, J.