People v. Abelar CA2/6

Filed 7/17/23 P. v. Abelar CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B322412 (Super. Ct. No. TA108715) Plaintiff and Respondent, (Los Angeles County)

v.

JOSE LUIS ABELAR,

Defendant and Appellant.

Jose Luis Abelar appeals the denial of his petition for resentencing. (Pen. Code, § 1172.6.)1 We appointed counsel for Abelar for this appeal. Counsel was unable to find any arguable issues to brief and she filed an opening brief under People v. Delgadillo (2022) 14 Cal.5th 216. Abelar filed a supplemental brief. We conclude, among other things, that Abelar has not shown the trial court erred by denying his petition. We affirm. In 2010, a jury convicted Abelar of first degree murder (§ 187, subd. (a)) and attempted murder (§§ 187, subd. (a), 664).

1 All statutory references are to the Penal Code.

The jury found Abelar personally and intentionally used and discharged a firearm causing great bodily injury and death. (§ 12022.53, subd. (b), (c) & (d).) The trial court sentenced him to a term of 75 years to life in prison. (People v. Sanchez and Abelar (Mar. 27, 2012, B227067) [nonpub. opn.]. ) On March 27, 2012, we affirmed his conviction. (Ibid.) Abelar filed a petition for resentencing in 2022. The trial court appointed counsel for him. The People filed an opposition stating Abelar “was prosecuted as a perpetrator who acted with actual malice and cannot avail himself of the relief” under the resentencing statute. They said, “[T]he jury was not instructed on felony murder, natural and probable consequences or any other theory under which malice in imputed to a person based solely on that person’s participation in a crime.” The court held a hearing on the first stage of the resentencing petition. After taking the matter under submission, the trial court denied his petition. It did not issue an order to show cause. The court found Abelar was not eligible for resentencing because: 1) he “was the actual killer,” 2) he was not convicted of murder on “a theory of felony-murder” or a “theory of natural and probable consequences,” and 3) his convictions were based “solely on him having been an actual perpetrator who acted with actual malice.” The resentencing statute was enacted to provide relief for certain defendants convicted of murder. But a defendant who committed murder and was the “actual killer” is not eligible for resentencing. (People v. Cornelius (2020) 44 Cal.App.5th 54, 57.) Abelar contends that his appellate counsel should be directed to, among other things, brief additional issues. We have reviewed this request and conclude from this record that he has not shown that his appellate counsel was defective in any way.