People v. Mermer CA2/1

Filed 10/30/20 P. v. Mermer CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B300956

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA072721) v.

SEAN MERMER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Leslie E. Brown, Judge. Dismissed. Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ________________________________

Sean Mermer appeals from an order denying his motion to recall his sentence and resentence him pursuant to Penal Code section 1170.95. For the reasons explained below, we dismiss the appeal.

BACKGROUND In 2011, a jury convicted Mermer of first degree murder and attempted premeditated murder, and the trial court sentenced him to 50 years to life. We affirmed the conviction and sentence in an unpublished opinion. (People v. Martin (July 30, 2014, B239366) 2014 Cal.App. Unpub. Lexis 5345.) On April 23, 2019, Mermer filed a petition for recall of 1 sentence and resentencing under Penal Code section 1170.95. The Los Angeles County District Attorney opposed the petition, attaching as exhibits our direct appeal opinion and a copy of the reporter’s transcripts of the jury instructions. The trial court summarily denied Mermer’s petition on the grounds that he had been found guilty of murder as an aider and abettor with specific intent, and the jury had not been instructed on either the felony murder rule or the natural and probable consequences theory. Mermer appealed. Mermer’s appellate counsel filed a brief raising no issues on appeal and requesting that we independently review the record pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano) to determine if the lower court committed any error. Counsel sent a copy of the brief and the record to Mermer and informed him that he may file a supplemental brief. On August 6, 2020, we sent a letter to Mermer informing him that he “may submit by brief or