People v. Noel CA1/5

California Court of Appeal Jun 26, 2024 No. A168631Unpublished

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Holding. The court affirmed the denial of the defendant's petition for resentencing under Penal Code section 1172.6, holding that the defendant failed to establish a prima facie case because the record of conviction conclusively proved he was the sole perpetrator and actual shooter who acted with the intent to kill.

Issues

Whether the trial court properly denied the defendant's petition for resentencing under Penal Code section 1172.6 at the prima facie stage.
Whether the defendant is entitled to relief under section 1172.6 based on a claim of 'lack of malice.'
Whether the appellate court should address the trial court's refusal to consider a motion to dismiss sentencing enhancements under Senate Bill 81 in the context of a section 1172.6 appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The petitioner was the actual shooter, having been found by jury to have had an intent to kill the victim when petitioner shot him with a firearm.”

“It is well settled section 1172.6 precludes relief as a matter of law where the record of conviction shows a defendant was the sole perpetrator and actual shooter.”

Filed 6/25/24 P. v. Noel CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A168631 v. PATRICK EVERETT NOEL, (Mendocino County Defendant and Appellant. Super. Ct. No. SCWLCRCR-04-58628)

Defendant Patrick Noel appeals from a postjudgment order denying his petition for resentencing on his attempted murder conviction (Pen. Code, §§ 664, 187)1 under section 1172.6 (former § 1170.95). Appointed counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) raising no issue on appeal and requesting that we exercise our discretion to independently review the record to determine for ourselves whether any arguable issue exists. Defendant thereafter took the opportunity afforded him under Delgadillo to file a supplemental brief raising certain issues for our review.

1 Unless otherwise stated, all statutory citations herein are to the Penal

Code.

Having exercised our discretion to conduct an independent review of the record, we agree with appointed counsel there is no arguable issue on appeal. We therefore affirm the order. FACTUAL AND PROCEDURAL BACKGROUND On November 26, 2003, around 9:30 p.m., Richard N. was walking toward Main Street in Willets when a black Mitsubishi Montero drove past. Richard recognized this vehicle as belonging to his friend Raelene D. and observed that defendant, his cousin, was driving and appeared to be alone. The Montero turned around and pulled up next to Richard. Richard saw a flash through the rear passenger side window, heard a gunshot, and felt a gust of wind on his neck. Richard immediately ran to the nearby home of a family friend and said, “Oh my god. [Defendant] shot at me.” Around 2:00 a.m. on November 27, 2003, defendant went to the house of Raelene, his former girlfriend, and tried to enter through her bedroom window. Defendant told Raelene that he tried to kill Richard because Richard snitched on him. Scared, Raelene told him to leave and went to her mother’s bedroom. When she returned to her bedroom, defendant was trying to crawl inside, through her window. Around 4:00 a.m. the same morning, the police responded to Raelene’s house based on a report that defendant was trying to break in. The police found the black Montero in the street with a semiautomatic pistol in the front seat. During another search of the vehicle the next day, the police found a shell casing in the rear seat, in a location consistent with the driver’s shooting a weapon out the rear passenger window. In 2004, a jury convicted defendant of attempted murder of Richard N. (Pen. Code, §§ 664, 187; count one); assault on Richard N. with a firearm (Pen. Code, § 245, subd. (b); count two); unlawful participation in a criminal

People v. Noel CA1/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

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