People v. Novelo CA1/5

Filed 6/21/24 P. v. Novelo CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A169024 v. ANDRES NOVELO, (City & County of San Francisco Defendant and Appellant. Super. Ct. Nos. 223570, 14031390)

MEMORANDUM OPINION Andres Novelo appeals an order denying his petition for resentencing under Penal Code section 1172.6. We affirm.1 In 2014, Novelo stabbed and killed a stranger outside a San Francisco bar. The following year, a jury convicted him of several felonies, including second degree murder (§ 187, subd. (a)), and it found true an allegation that he personally used a knife in the commission of the murder (§ 12022, subd. (b)(1)). The trial court sentenced him to 19 years to life in prison; this court affirmed. (People v. Novelo (Aug. 25, 2017, A146406) [nonpub. opn.].) In 2022, Novelo petitioned for resentencing under section 1172.6. After appointing counsel, issuing an order to show cause, and conducting a hearing,

1 We resolve this case by memorandum opinion.(Cal. Stds. Jud. Admin., § 8.1.) Undesignated statutory references are to the Penal Code.

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the trial court determined Novelo was ineligible for resentencing and denied the petition. The court noted the relevant portions of the trial transcripts and the jury instructions demonstrated the jury determined “Novelo was the actual killer . . . .” Thus, the court concluded the prosecution had met its “burden of proving beyond a reasonable doubt” that he was guilty of murder under California law as amended by section 1172.6. Novelo appealed. His appointed appellate counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 identifying no arguable issues and requesting we exercise our discretion to independently review the record for arguable issues. Novelo submitted a “supplemental brief.” (Capitalization omitted.) We have evaluated the assertions raised in Novelo’s submission; as explained post, we conclude they do not furnish a basis for reversal. (See id. at p. 232 [the “filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues”].) Novelo is not eligible for resentencing relief because the record establishes that he was convicted of second degree murder based on a showing of malice. The jury found he personally used a knife in the commission of the murder, and it is undisputed the victim died of a stab wound. (See People v. Cornelius (2020) 44 Cal.App.5th 54, 58 [defendant ineligible for resentencing where jury found he personally and intentionally used firearm to commit crime, an implicit finding he was the actual killer], abrogated on other grounds in People v. Lewis (2021) 11 Cal.5th 952, 961– 962.) While the jury was instructed with CALCRIM Nos. 400 and 401 (aiding and abetting) and CALCRIM No. 402 (natural and probable consequences), all three instructions explicitly stated they applied only to Novelo’s codefendant. (Cf. People v. Offley (2020) 48 Cal.App.5th 588, 599 [at