People v. De La Cruz CA2/5

Filed 2/7/22 P. v. De La Cruz CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B312111

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA198877) v.

JOSE DE LA CRUZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Kathleen Kennedy, Judge. Dismissed. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for respondent.

In 2002, a jury convicted defendant and appellant Jose De La Cruz of first degree murder. (Pen. Code, § 187, subd. (a)1.) The jury found true the allegations that defendant personally used and personally discharged a firearm. (§ 12022.53, subd. (b) & (c).) The trial court sentenced defendant to 25 years to life plus 20 years in state prison. On October 8, 2003, a prior panel of this division affirmed defendant’s judgment. (People v. De La Cruz (Oct. 8, 2003, B158884) [nonpub. opn.].) On March 20, 2020, defendant filed a petition for resentencing pursuant to Senate Bill No. 1437 and section 1170.95. On April 21, 2020, the trial court appointed counsel to represent defendant. On November 10, 2020, the Los Angeles County District Attorney filed an opposition to defendant’s petition that included as exhibits the appellate opinion referenced above and a transcript of the oral jury instructions given at defendant’s trial. The District Attorney argued, among other things, that defendant’s petition failed to make a prima facie showing for relief because the jury was not instructed on felony murder or the natural and probable consequences doctrine. On February 22, 2021, defendant filed a response to the District Attorney’s opposition requesting the trial court to issue an order to show cause and hold an evidentiary hearing. In his response, defendant conceded the jury was not instructed on felony murder or the natural and probable consequences doctrine, but argued the jury was instructed on lying in wait murder which