People v. Duenas CA3

Filed 9/28/22 P. v. Duenas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE,

Plaintiff and Respondent, C096005

v. (Super. Ct. No. STK-CR-FE- 2010-0007199) NOAH EUGENE DUENAS,

Defendant and Appellant.

Appointed counsel for defendant Noah Duenas asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant filed a supplemental brief claiming the trial court erred in denying his petition for resentencing under Penal Code section 1172.6.1

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to become section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Although defendant filed his petition under former section 1170.95, we cite the current section number throughout this opinion.

1

Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment. I The background comes from this court’s prior opinion in defendant’s direct appeal. (People v. Duenas (May 21, 2014, C070823) [nonpub. opn.] (Duenas).) We granted defendant’s request to incorporate by reference case No. C070823. Defendant was conversing with Jose “Boo” Lua when defendant suddenly shot Lua in the head and fled the scene. Defendant said he shot Lua in self-defense because Lua verbally threatened defendant and a family member. The jury found defendant guilty of first degree murder and found he personally and intentionally discharged a firearm causing Lua’s death. Defendant received a sentence of 50 years to life in prison. (Duenas, supra, C070823.) This court affirmed the judgment. Among other things, defendant argued on appeal that there was insufficient evidence to support the jury’s premeditation and deliberation finding. After reviewing the record, this court concluded that based on the manner and circumstances of the killing, the evidence was sufficient to support the jury’s finding. (Duenas, supra, C070823.) On February 28, 2022, defendant filed a petition for resentencing pursuant to section 1172.6. The form petition had boxes checked asserting defendant was convicted of murder under a theory of felony murder or the natural and probable consequences doctrine and could not now be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019. Defendant requested appointment of counsel. On March 7, 2022, the trial court summarily denied defendant’s petition by written order, stating that defendant had not made a prima facie showing because he was convicted of personally discharging a firearm and he testified that he was the shooter.