People v. Pizano CA1/1

Filed 8/29/23 P. v. Pizano CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A167378

v. (Sonoma County JUAN PIZANO, Super. Ct. No. SCR644461) Defendant and Appellant.

Defendant Juan Pizano was originally charged with several felonies, including attempted murder. However, pursuant to a negotiated disposition, defendant pleaded no contest to one count of first degree burglary and one count of shooting at an occupied vehicle and admitted certain enhancement allegations as to those counts. In accordance with the plea agreement, the trial court dismissed the remaining counts and sentenced defendant to 18 years eight months in prison. (People v. Pizano (May 31, 2017, A147589) [nonpub. opn.].) In 2022, defendant filed a petition for resentencing under former Penal Code section 1170.95,1 now section 1172.6. The trial court denied the petition, concluding defendant failed to make a prima facie showing of

1 All further statutory references are to the Penal Code.

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entitlement to relief because “as a matter of law . . . he was not convicted of any qualifying offense for which recall relief is available.” Pizano’s appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), which established the procedural framework for appellate courts to follow when counsel finds no arguable issues in a section 1172.6 appeal. Under that framework, we gave defendant notice that he had a right to file a supplemental brief or his appeal could be dismissed. (See Degadillo, at pp. 231–232.) Defendant filed a supplemental brief, requiring us to issue an opinion evaluating the issues raised therein. (See id. at p. 232.) Because the record indicates defendant is ineligible for relief under section 1172.6, we affirm the trial court’s order denying the petition for resentencing. DISCUSSION In his supplemental brief, defendant asserts he qualifies for relief under section 1172.6 because he was not the actual shooter. “Effective January 1, 2019, Senate Bill [No.] 1437 amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, ‘[m]alice shall not be imputed to a person based solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).)” (People v. Turner (2020) 45 Cal.App.5th 428, 433; People v. Gentile (2020) 10 Cal.5th 830, 842, abrogated by statute on another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869.) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless the defendant “was a major participant in the underlying felony and acted with reckless