People v. Cicero CA3

Filed 1/14/26 P. v. Cicero CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C101844

v. (Super. Ct. No. 00F06251)

CASEY JOSEPH CICERO,

Defendant and Appellant.

Defendant Casey Joseph Cicero appeals from the trial court’s denial of his petition for resentencing under Penal Code section 1172.6.1 Appointed counsel asked this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), and defendant filed a supplemental brief asserting various contentions. Consistent with People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), we will limit our review to the contentions raised in defendant’s supplemental brief.

1 Undesignated statutory references are to the Penal Code. Defendant’s petition was filed under former section 1170.95. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We will refer to the current section.

1

Defendant contends (1) the prosecution’s sole murder theory at trial was felony murder, which imputed malice to defendant based on his participation in the underlying felony; (2) because the jury deadlocked on whether defendant used a weapon, the jurors may have believed his accomplice used the weapon; (3) this case is subject to People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), but the jury was never instructed on those factors; and (4) defense counsel was ineffective in presenting argument at the evidentiary hearing. Finding defendant’s contentions forfeited or without merit, we will affirm the trial court’s denial of the petition for resentencing. BACKGROUND We derive the following facts from this court’s prior opinion on direct appeal (People v. Cicero (July 9, 2003, C039206) [nonpub. opn.]), but we do not rely on them to address defendant’s contentions. In July 2000, defendant and Maria Tenorio planned to rob a patron of an adult theater. Defendant ultimately stabbed and killed the victim, Peter Trujillo. A jury convicted defendant of first degree murder (§ 187, subd. (a)) and found true the special circumstance allegation that in committing the murder, defendant committed a robbery or attempted robbery (§ 190.2, subd. (a)(17)). However, the jury deadlocked on an allegation that defendant used a deadly weapon, a knife. (§ 12022, subd. (b)(1).) The trial court declared a mistrial on the allegation, which the court dismissed on the People’s motion. The trial court sentenced defendant to life without the possibility of parole. In July 2022, defendant filed a section 1172.6 petition, and the trial court appointed counsel for defendant. After the People conceded that defendant had made a prima facie showing, the trial court issued an order to show cause and received additional briefing. The prosecution submitted the record from the original trial as the evidence it intended to rely on at the evidentiary hearing. Neither party submitted any additional evidence. The trial court conducted an evidentiary hearing and denied the petition.