People v. Hendrix CA3

Filed 10/9/23 P. v. Hendrix CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C096994

Plaintiff and Respondent, (Super. Ct. No. 08F09531)

v.

MARCELL HENDRIX,

Defendant and Appellant.

Defendant Marcell Hendrix appeals from the denial of his postconviction petition for relief under Penal Code section 1172.6.1 Counsel for defendant filed a brief seeking our independent review under People v. Wende (1979) 25 Cal.3d 436 and People v.

1 Further undesignated statutory references are to the Penal Code.

Defendant filed his petition under former section 1170.95. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 with no change in the text. (Stats. 2022, ch. 58, § 10.) We will refer to the statute by its current section number.

1

Delgadillo (2022) 14 Cal.5th 216 to determine whether there are any arguable issues on appeal. Defendant also filed a supplemental brief in propria persona. Disagreeing with defendant’s claim of error, we will affirm.

FACTUAL AND PROCEDURAL BACKGROUND A jury found defendant guilty of attempted murder (§§ 664/187, subd. (a)) and one count of infliction of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)), and found true several enhancements. The trial court found a prior strike allegation true and sentenced defendant to a total term of 29 years. On April 1, 2022, defendant filed a petition for resentencing under section 1172.6, alleging he was convicted on a now-invalid theory. The prosecutor filed a response, arguing the jury instructions at defendant’s trial did not include an instruction on the natural and probable consequences doctrine, and instead required the jury to find defendant had the intent to kill to find defendant guilty of attempted murder. The prosecutor attached the jury instructions to the response, including the attempted murder instruction under CALCRIM No. 600. On September 13, 2022, the trial court denied defendant’s petition by written order, stating the attempted murder instruction “required the jury to find [defendant] ‘intended to kill a person’ in order to find him guilty” and the “jury was not instructed on felony murder (CALCRIM 540A, 540B) or the natural and probable consequences doctrine (CALCRIM 402, 403).”