People v. Palacios CA2/6

Filed 11/22/23 P. v. Palacios CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B329788 (Super. Ct. No. BA165407) Plaintiff and Respondent, (Los Angeles County)

v.

JORGE PALACIOS,

Defendant and Appellant.

Jorge Palacios appeals the order of the trial court denying his petition for resentencing pursuant to Penal Code section 1172.61 (former section 1170.95).2 We appointed counsel to represent appellant on appeal. After an examination of the record, counsel filed an opening brief raising no issues and requesting that we follow the procedures set forth in People v.

1 All further statutory references are to the Penal Code.

2 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)

Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Appellant filed his own supplemental brief, in propria persona. We affirm. Procedural Background In 1998, a jury convicted appellant of second degree murder (§ 187, subd. (a), count 1), attempted murder (§§ 664/187, subd. (a), count 2), and mayhem (§ 203, count 3). The jury also found true as to each count the allegation that appellant personally and intentionally discharged a firearm resulting in great bodily injury. (§ 12022.53, subd. (d).) The trial court sentenced appellant to 70 years to life. We affirmed the conviction in a nonpublished opinion, (People v. Palacios (Oct. 21, 1999, B129567).) In 2022, appellant filed a form petition for resentencing pursuant to section 1172.6. The trial court appointed counsel and ordered briefing. Appellant submitted two letters to the trial court requesting the trial court consider that he was “totally disabled.” The trial court denied the petition finding there was no prima facie showing because appellant was the actual killer based on the record of conviction. Discussion Because the instant appeal is from an order denying postconviction relief rather than a first appeal as of right from a criminal conviction, appellant is not entitled to our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, or its federal constitutional counterpart, Anders v. California (1967) 386 U.S. 738. (Delgadillo, supra, 14 Cal.5th at pp. 221- 222, 230; see People v. Kelly (2006) 40 Cal.4th 106, 119 [independent judicial review mandated by Anders applies only to first appeal as of right]; People v. Serrano (2012) 211 Cal.App.4th