People v. Wagner CA3

Filed 12/23/24 P. v. Wagner CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C100529

Plaintiff and Respondent, (Super. Ct. No. 95F00229)

v.

WILLIE WAGNER,

Defendant and Appellant.

In June 1996, a jury found defendant Willie Wagner guilty of first degree murder and two counts of robbery. In 2023, defendant filed a petition for resentencing under Penal Code section 1172.6.1 The trial court denied the petition at the prima facie stage, and defendant appeals from that order of denial. His appellate counsel filed a brief raising no arguable issues under People v. Delgadillo (2022) 14 Cal.5th 216 and People

1 Further undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Although defendant filed his petition in 2023 referencing former section 1170.95, we cite to the current section 1172.6.

1

v. Wende (1979) 25 Cal.3d 436 and asks that we exercise our discretion to review the record for arguable issues on appeal. Defendant filed a supplemental brief arguing: (1) the district attorney filed false charges against him because his identification was the product of an improper lineup and he was factually innocent of the charges; (2) his trial counsel rendered ineffective assistance because he knew about the improper lineup and did not do anything about it; (3) the trial judge exhibited racial bias towards him and refused to dismiss enhancements based on his prior prison terms; and (4) the trial court improperly instructed the jury at his original trial. None of these arguments are cognizable in this appeal. We affirm. BACKGROUND The complaint deemed an information charged defendant with murder and two counts of robbery. It alleged a special circumstance that the murder was committed by defendant while he was engaged in the commission of a robbery. It further alleged defendant had two prior serious felony convictions and served two prior prison terms. We take the facts from our original decision affirming defendant’s conviction. (People v. Wagner (Mar. 30, 1998, C024362) [nonpub. opn.].)2 In 1994, defendant entered the Del Paso Boulevard pawnshop of the murder victim (husband) and his wife and placed a gun to the wife’s face and ordered her to get on the floor. He also ordered the husband to get on the floor. The husband twice asked the defendant to take only their money and property and not property belonging to their customers. The wife then heard a gunshot. After defendant left the shop, the wife found her husband had been shot and his wrists were bound with shoelaces. He died shortly thereafter from the gunshot wound.