People v. Saldana CA4/1

Filed 10/13/22 P. v. Saldana CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D080412

Plaintiff and Respondent,

v. (Super. Ct. No. FWV1102225)

EMILIO PELAYO SALDANA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino County, Ingrid A. Uhler, Judge. Affirmed. Emilio Saldana, in pro. per.; and Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. This an appeal from the summary denial of appellant’s second petition

for resentencing filed under Penal Code1 former section 1170.95.2

1 All further statutory references are to the Penal Code.

In May 2015, a jury convicted Emilio Pelayo Saldana of first degree murder (§ 187, subd. (a)) and found true an allegation that a principal was armed with a firearm during the offense (§ 12022, subd. (a)(1)). Saldana was sentenced to an indeterminate term of 51 years to life in prison. In 2019, Saldana filed his first petition for resentencing under section 1172.6. The court found the jury had not been instructed on felony murder or natural and probable consequences theories of liability and denied the petition. In 2022, Saldana filed the current petition for resentencing under section 1172.6. The court appointed counsel and ultimately denied the petition. The court again found the jury was not instructed on felony murder or natural and probable consequences and that Saldana was tried as a direct aider and abettor. Saldana 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 Saldana the opportunity to file his own brief on appeal. He has responded by filing a supplemental brief, which we will discuss below.