People v. Abiel CA4/1

Filed 5/4/23 P. v. Abiel CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D080726

Plaintiff and Respondent,

v. (Super. Ct. No. SCD244879)

ABAN ABIEL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed. Aban Abiel, in pro. per.; and Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2013, a jury convicted Aban Abiel of second degree murder (Pen. Code, § 187, subd. (a)) and found he used a knife in the commission of the offense (§ 12022, subd. (b)(1)). Abiel was sentenced to an indeterminate term of 16 years to life in prison. Abiel appealed and this court affirmed the judgment in an unpublished opinion. (People v. Abiel (Dec. 17, 2014, D064565).)

In 2018, Abiel filed his first petition for resentencing under section 1170.95 (now renumbered section 1172.6). The court found Abiel had not stated a prima facie case for relief under the statute and, thus, denied the petition. In 2022, Abiel filed his second petition for resentencing under section 1172.6. The trial court again denied the petition finding on both petitions that Abiel was the actual killer and therefore ineligible for relief under the statute. The court stated: “Petitioner’s first petition was denied on July 20, 2020, on the grounds that the record demonstrated Petitioner was the actual killer, and, thus, ineligible for relief. While there have been subsequent changes to Section [1172.6] through legislative amendments and varying statutory interpretations within the relevant case law, there has been no change in the applicable law or facts to Petitioner’s case that would justify the filing of a successive petition, nor has Petitioner asserted such a justification.”