People v. Luna CA2/5

Filed 7/23/21 P. v. Luna CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, B308370

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA119342) v.

NESTOR LUNA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, H. Clay Jacke, II, Judge. Affirmed. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.

A jury convicted defendant and appellant Nestor Luna (defendant) of first degree murder for aiding and abetting the fatal shooting of an acquaintance with whom he and his codefendant, Domingo Pena, previously had disagreements. The trial court sentenced defendant to twenty-five years to life in prison. This court affirmed the judgment on direct appeal in an unpublished opinion. (People v. Luna (July 25, 2014, B244722 [nonpub. opn.]).) In August 2019, defendant filed a form petition for resentencing under Penal Code section 1170.95.1 The superior court appointed counsel for defendant. The People opposed defendant’s petition, arguing the prosecution had not relied on either a felony murder theory or the natural and probable consequences doctrine in prosecuting defendant. The trial court held argument on the petition and denied it without issuing an order to show cause, finding defendant had not established a prima facie case for relief. Defendant noticed an appeal from the denial of his petition. This court appointed counsel to represent him and, after reviewing the record, defendant’s attorney filed a brief raising no issues. We invited defendant to personally submit a supplemental brief, and defendant submitted a four-page document principally arguing one of the prosecution’s main witnesses, Silvia G., was not a credible witness. We have “no independent duty to review the record for reasonably arguable issues” in this appeal. (People v. Cole (2020) 52 Cal.App.5th 1023, 1039-1040, review granted Oct. 14, 2020,