People v. Lee CA3

Filed 1/25/24 P. v. Lee CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C098789

Plaintiff and Respondent, (Super. Ct. No. 08F01220)

v.

BEN EDWARD LEE,

Defendant and Appellant.

Defendant Ben Edward Lee appeals the trial court’s denial of his petition for resentencing under Penal Code section 1172.6.1 Appointed counsel filed a brief raising no arguable issues under People v. Delgadillo (2022) 14 Cal.5th 216 and requesting that

1 Undesignated statutory references are to the Penal Code. Defendant filed his petition under former section 1170.95. Effective January 1, 2022, section 1170.95 was amended by Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) (Stats. 2021, ch. 551, § 2). Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) We cite to the current section 1172.6 throughout this opinion.

1

we exercise our discretion to review the entire record for arguable issues on appeal. We notified defendant that he had 30 days in which to file a supplemental brief raising any argument he wanted this court to consider. In his supplemental brief, defendant fails to raise any issues cognizable on appeal from denial of a section 1172.6 petition. We will affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2009, a jury found defendant guilty of attempted murder (§§ 664, 187, subd. (a)) and found true he personally used a firearm (§§ 12022.53, subds. (b)-(d), 12022.5, subd. (a)(1).) The trial court sentenced defendant to 39 years to life in state prison. We affirmed the judgment in 2012. (People v. Lee (Mar. 15, 2012, C063098) [nonpub. opn.].) In November 2022, defendant filed a petition for resentencing under section 1172.6. The trial court appointed counsel and the parties submitted briefing. In May 2023, the trial court held a hearing and denied the petition, finding that defendant was ineligible for relief as a matter of law because the jury was not instructed on a theory of murder that is now invalid pursuant to the changes to sections 188 and 189 implemented by Senate Bill No. 1437 (Reg. Sess. 2017-2018) (Senate Bill 1437). (Stats. 2018, ch. 1015, § 1(f).) Defendant timely appealed. DISCUSSION A. Legal Background Senate Bill 1437, which became effective on January 1, 2019, “amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1(f).))