People v. Vargas CA4/3

Filed 2/27/23 P. v. Vargas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G061640

v. (Super. Ct. No. 02CF0607)

FERMIN VARGAS, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Defendant Fermin Vargas filed a petition for resentencing pursuant to former Penal Code section 1170.95.1 At the prima facie hearing on the petition, the trial court denied Vargas resentencing relief, finding he was the actual shooter and was not convicted under an imputed malice theory of liability. Appointed appellate counsel for Vargas filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case. Citing Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel also identified potential issues to assist in our independent review.2 Although Vargas was provided 30 days to file written argument on his own behalf, he did not do so.3 Exercising our discretion and in the interest of justice, we have examined the entire record and we find no reasonably arguable issue. (See People v. Delgadillo, supra, 14 Cal.5th at p. 232 and People v. Flores (2020) 54 Cal.App.5th 266, 268.) We therefore affirm.

1 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the statute as former section 1170.95 or section 1172.6. All further statutory references are to the Penal Code.