Filed 8/4/22 P. v. Ornelas CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B318147 (Los Angeles County Plaintiff and Respondent, Super. Ct. No. A326664) v. ERNESTO ORNELAS, Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Lynne M. Hobbs, Judge. Affirmed.

Ernesto Ornelas, in pro per.; Law Offices of Allen G.

Weinberg and Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ Ernesto Ornelas appeals from an order denying his petition for resentencing under Penal Code1 section 1172.6.2 His appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436 (Wende), asking us to independently review the appeal.3 In 1977, a jury found Ornelas guilty of first degree murder (§ 187, subd. (a); count 1) and of assault with a deadly weapon

(§ 245, subd. (a); count 3).4 As to count 1, the jury found that Ornelas used a gun under sections 1203.06, subdivision (a)(1), and 12022.5, but as to count 3, the jury found he used a gun under just section 12022.5. The trial court said it was sentencing Ornelas to state prison “for the term prescribed by law” on both counts, with the sentence on count 3 to run concurrently to count 1.

In 2021, Ornelas petitioned for resentencing under section 1172.6. The trial court appointed counsel to represent Ornelas.

The People opposed the petition on the ground that Ornelas’s jury was not instructed on felony murder or the natural and probable consequences doctrine. With the opposition, the People submitted these exhibits: the information, a probation report, and jury instructions. Ornelas’s counsel also submitted the jury instructions. The parties submitted on the briefs, with Ornelas’s counsel stating he could make no argument to support a prima facie case and asking to be relieved as counsel. The trial court found that Ornelas had not made a prima facie showing of entitlement to relief and denied the petition.

This appeal followed. Court-appointed appellate counsel filed an opening brief that raised no issues and asked this court to independently review the record under Wende, supra, 25 Cal.3d 436. Ornelas filed a supplemental brief. Stating his contentions as we understand them, Ornelas argues that indeterminate sentencing statutes were repealed and therefore his indeterminate sentence is unauthorized; his sentence is unauthorized by statute; various changes in the law, including modifications to parole deferrals, applied to him; he was not the

actual killer and therefore the principle under which he was convicted is vague; and the presentation of his case violated due process because his codefendant was willing to admit that he (codefendant) was the actual killer.

To the extent Ornelas in his supplemental brief argues that his petition for resentencing was improperly denied, Senate Bill No. 1437 (2017–2018 Reg. Sess.) limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder. (People v. Lewis (2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842–843.) Ornelas’s jury, however, was not instructed on either felony murder or the natural and probable consequences doctrine. Nor do the instructions and jury verdict show that Ornelas was convicted on a theory under which malice was imputed to him. (§ 1172.6, subd. (a).) Instead, the jury having found Ornelas guilty of first degree murder, it necessarily found he acted with express malice and premeditation, making him ineligible for resentencing under section 1172.6.

And as for Ornelas’s contention that his sentence was otherwise unauthorized, he has not provided an adequate record or argument to make that showing.

We have examined the record and are satisfied no arguable issues exist and Ornelas’s attorney has fully complied with the responsibilities of counsel. (People v. Kelly (2006) 40 Cal.4th 106, 125–126; Wende, supra, 25 Cal.3d at pp. 441–442.)

DISPOSITION The order is affirmed.

NOT TO BE PUBLISHED.

EDMON, P. J.

We concur:

EGERTON, J.

ADAMS, J.*

* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.