People v. Ceballos CA4/1

Filed 7/25/23 P. v. Ceballos CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D081195

Plaintiff and Respondent,

v. (Super. Ct. No. SCE358753)

CINDY MARIE CEBALLOS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Frank L. Birchak, Judge. Affirmed. Cindy Marie Ceballos, in pro. per.; and Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2017, a jury convicted Cindy Marie Ceballos of first degree murder

(Pen. Code,1 § 187, subd. (a)) and found that she used a deadly weapon

1 All statutory references are to the Penal Code unless otherwise specified.

(a knife) in the commission of the offense (§ 12022, subd. (b)(1)). The court sentenced Ceballos to an indeterminate term of 26 years to life in prison. Ceballos appealed and this court affirmed the conviction in an unpublished opinion. (People v. Ceballos (Nov. 5, 2018, D072734).) In 2022, Ceballos filed a pro. per. petition for resentencing under former section 1170.95 (now renumbered section 1172.6) using the form petition. The court appointed counsel, received briefing, reviewed the record of conviction, and held a hearing. The court found the jury was not instructed on felony murder or natural and probable consequences. The record demonstrated Ceballos was the actual killer who used the knife in the commission of the crime. As such, the court found Ceballos was ineligible for resentencing as a matter of law. The court denied the petition without issuing an order to show cause or holding an evidentiary hearing. Ceballos filed a timely notice of appeal. Appellate counsel has filed a brief following the guidance provided in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Counsel asks the court to exercise its discretion and conduct an independent review of the record for error consistent with People v. Wende (1979) 25 Cal.3d 436 (Wende). We offered Ceballos the opportunity to submit her own brief on appeal. She has filed two supplemental briefs which we will discuss later in this opinion. STATEMENT OF FACTS We will adopt the summary of the facts of the offense provided in the appellant’s opening brief for convenience. Ceballos and the victim, Christalina, both dated Darryl, which created jealousy between Ceballos and Christalina. The morning of the killing, Christalina received a text message from Darryl stating that Natalie,