People v. Felix CA4/1

Filed 9/29/22 P. v. Felix CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080432

Plaintiff and Respondent,

v. (Super. Ct. No. SWF017408)

FABIAN FELIX,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Fabian Felix, in pro. per.; and Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In November 2010, a jury convicted Fabian Felix of first degree murder

(Pen. Code,1 § 187, subd. (a)) and found he had personally discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d)). The jury also found the alleged special circumstance of lying-in-wait and murder

1 All further statutory references are to the Penal Code.

during a robbery to be true (§ 190.2, subds. (a)(15) & (17)). Felix was sentenced to prison for life without parole. Felix appealed and this court reversed the lying-in-wait and murder during a robbery special circumstance. (People v. Felix (Jan. 31, 2013, D059719.) Thereafter, Felix was resentenced to a total indeterminate term of 50 years to life. In 2021, Felix filed a petition for resentencing under section 1170.95 (now renumbered § 1172.6). The court appointed counsel, and ultimately issued an order to show cause. The parties submitted the evidentiary hearing on written briefs. The trial court found the evidence proved Felix was the actual killer and was thus ineligible for resentencing. Felix filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Felix the opportunity to file his own brief on appeal and he has responded with a written submission. We will address Felix’s brief below. STATEMENT OF FACTS Appellate counsel has submitted an accurate summary of the facts of the offense. Given the court’s finding the record demonstrates Felix was the shooter, we believe the summary provides helpful background information. We incorporate the summary from the Felix’s opening brief. “The following statement of facts, which is based on the reporter’s transcripts of [Felix]’s trial submitted as exhibits in the prosecution’s opposition to the petition, is limited to the evidence relevant to the issue