People v. Lara CA5

Filed 11/17/23 P. v. Lara CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F086043 Plaintiff and Respondent, (Super. Ct. No. VCF290489) v.

WILFREDO LARA, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Tulare County. Melinda Myrle Reed, Judge. Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Detjen, J. and Meehan, J.

INTRODUCTION In 2013, appellant and defendant Wilfredo Lara (defendant) was convicted of two counts of attempted voluntary manslaughter with firearm enhancements, and sentenced to an aggregate term of 23 years in prison. In 2023, the trial court denied defendant’s Penal Code1 section 1172.6 petition and found he was ineligible for resentencing because attempted voluntary manslaughter was not within the applicable statute. On appeal, appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436. Defendant submitted a supplemental brief. We will address his contentions, review the record of conviction, and affirm the trial court’s denial of his petition. FACTS2 “[A]round 7:30 [p.m.] on the evening of October 24, 2013, Oscar Madrigal was driving on a surface street when a van pulled alongside his car on the passenger side. The

1 All further statutory citations are to the Penal Code. 2 After notice to the parties and without objection, we have taken judicial notice of this court’s records and the nonpublished opinion that affirmed defendant’s convictions in People v. Lara (Jan. 25, 2018, F074100) [nonpub.opn.]. In reviewing a section 1172.6 petition, the court may rely on “the procedural history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3); People v. Clements (2002) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in fact finding at the prima facie stage. (Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) We have quoted the factual statement from defendant’s direct appeal to place his current arguments in context, and will not rely on that factual statement to resolve his appeal from the trial court’s order that found his petition did not state a prima facie case for relief.