People v. Calderon CA6

Filed 3/28/23 P. v. Calderon CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050107 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 159531)

v.

JUAN CARLOS CALDERON,

Defendant and Appellant. THE COURT 1 Defendant Juan Carlos Calderon appeals from an order denying his petition for resentencing under Penal Code section 1170.95.2 For the reasons set forth below, we affirm the order. I. BACKGROUND In 1993, a jury convicted Calderon of one count of second degree murder of his month-old son (§ 187, subd. (a)) and two counts of endangering the health of a child (§ 273a, subd. (1)). In 1994, this court affirmed the judgment. (People v. Calderon (Aug. 3, 1994, H011306) [nonpub. opn.].) On June 3, 2021, Calderon filed a petition for resentencing under former section 1170.95. The Superior Court denied the petition on July 8, 2021, stating that it appeared,

1 Before Greenwood, P. J., Grover, J. and Danner, J. 2 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no changes to the text. (Stats. 2022, ch. 58, § 10.)

based upon Calderon’s arguments in the petition, that he was convicted of being the actual killer. Calderon did not appeal the order denying this petition for resentencing. On November 22, 2021, Calderon filed a second petition under former section 1170.95. The court denied the petition on June 8, 2022, ruling that Calderon could not make a prima facie showing that that he was entitled to relief because the jury was not instructed on the theory of felony murder or the natural and probable consequences doctrine. Calderon timely appealed. On appeal, counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). We notified Calderon that he could file a supplemental brief on his own behalf, and that failure to do so would result in the dismissal of the appeal as abandoned. (People v. Delgadillo (2022) 14 Cal.5th 216, 232.) On December 8, 2022, and December 12, 2022, Calderon filed two separate supplemental briefs.3 II. DISCUSSION In his supplemental briefs, Calderon lists several problems with the order denying his resentencing petition. He contends that the trial court acted improperly by holding a virtual hearing with poor reception and without an interpreter and that counsel was ineffective. He further argues that the trial court erred in denying his section 1172.6 petition on the merits. Finally, Calderon raises various issues related to his original conviction, including alleged improper jury instructions and prosecutorial misconduct. Calderon does not raise an arguable issue on appeal. An issue is arguable if it has a reasonable potential for success, and, if resolved favorably for the appellant, the result