People v. Cabrera CA2/6

Filed 1/16/24 P. v. Cabrera CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.B330436 (Super. Ct. No. BA214174) Plaintiff and Respondent, (Los Angeles County)

v.

SERGIO CABRERA,

Defendant and Appellant.

Sergio Cabrera appeals an order denying his petition for resentencing. (Pen. Code, § 1172.6.)1 This is a People v. Delgadillo (2022) 14 Cal.5th 216 appeal. In 2001, Cabrera was convicted of 1) attempted murder (§§ 664, 187, subd. (a)), with findings that he personally and intentionally discharged a handgun causing great bodily injury and acted with premeditation (§ 12022.53, subd. (d)); 2) assault with a firearm upon an officer (§ 245, subd, (d)(1)); 3) exhibiting a firearm in the presence of an officer (§ 417, subd. (c)); and 4)

1 All statutory references are to the Penal Code.

shooting at an occupied motor vehicle (§ 246), with findings that he personally used a firearm (§ 12022.53, subd. (b)). The trial court sentenced him to life in prison with the possibility of parole for attempted murder with a consecutive term of 25 years to life for the firearm enhancement. It sentenced him to a concurrent term of 16 years to life for assault with a firearm on a police officer, and stayed the sentences for the remaining two offenses under section 654. In 2004, we affirmed the conviction and found the evidence was sufficient to support the judgment. (People v. Cabrera (Aug. 31, 2004, B153549) [nonpub. opn.].) On September 30, 2022, Cabrera filed a petition for resentencing. (Former § 1170.95, now § 1172.6.) The People opposed the petition stating, “The jury was not instructed on the natural and probable consequences theory of culpability. The jury was not instructed on aiding and abetting. Petitioner was prosecuted and convicted as the actual perpetrator who committed this crime with actual malice and therefore cannot avail himself of the relief offered pursuant to Penal Code section 1172.6.” The trial court denied the petition. It found Cabrera had only “filed a boilerplate petition” and did not meet his burden to establish a prima facie case for the issuance of an order to show cause. He was the “actual attempted” killer who is not eligible for relief. We appointed counsel for Cabrera for this appeal. Counsel filed a brief under People v. Delgadillo, supra, 14 Cal.5th 216, stating there were no arguable issues for appeal. Cabrera filed a supplemental brief.