People v. Orange CA4/1

Filed 8/30/23 P. v. Orange CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D081522

Plaintiff and Respondent,

v. (Super. Ct. No. SCN165993)

EUGENE ORANGE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed. Eugene Orange, in pro. per.; and Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

In 2004, a jury convicted Eugene Orange1 of first degree murder (Pen.

Code,2 § 187, subd. (a)) and found he personally used a deadly weapon (knife) in the commission of the offense (§ 12022, subd. (b)(1)). The court found true

1 Appellant is also known as Eugene Kidd.

2 All further statutory references are to the Penal Code.

two serious felony prior convictions and two strike priors. The court sentenced Orange to an indeterminate term of 100 years to life, plus 11 years. Orange appealed his conviction, and this court affirmed the judgment in an unpublished opinion. (People v. Orange (Apr. 21, 2006, D045936).) In 2022, Orange filed a form petition for resentencing under section 1170.95 (now renumbered section 1172.6). The court appointed counsel for Orange, received briefing, reviewed the record of conviction, and held a hearing. At the hearing to determine if Orange had stated a prima facie basis for resentencing, the court concluded Orange was the sole perpetrator of this offense. The record demonstrated the jury was not instructed on aiding and abetting, natural and probable consequences or felony murder. The court determined Orange was the actual killer and was therefore ineligible for relief under section 1172.6. The court denied the petition without issuing an order to show cause or holding an evidentiary hearing. Orange filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) indicating counsel has not been able to identify any potentially meritorious issues for reversal on appeal. Counsel asks the court to exercise its discretion to conduct an independent review of the record for error, similar to the process used in cases under People v. Wende (1979) 25 Cal.3d 436 (Wende). We notified Orange of his right to file his own brief on appeal. He has responded by filing his own brief on appeal. We will discuss the supplemental brief later in this opinion. The facts of the underlying offense are discussed in our previous opinion. We will not repeat the discussion of the facts in the present opinion.