People v. Evan CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. CR119743
- Trial judge
- Steven E. Stone
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Buchanan (author), Judith D. McConnell, O'Rourke
Analysis
The trial court denied Evan's petition for resentencing under Penal Code section 1172.6, determining he was ineligible for relief because his murder conviction was not based on a theory of imputed malice. The Court of Appeal affirmed the denial, finding that the jury instructions for the murder count did not include theories of imputed malice, rendering Evan ineligible as a matter of law.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.6“Our discretionary independent review of the record does not reveal any arguable issues for reversal of the order denying Evan’s petition for resentencing under section 1172.6.” | de novo | correct | agree with court The appellate court correctly applied the standard of review for a prima facie denial under section 1172.6, which is de novo. The court relied on the record of conviction and jury instructions to determine that Evan was ineligible because the murder count did not involve imputed malice. This aligns with established California law regarding the scope of section 1172.6 relief. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appellate review when counsel finds no arguable issues in a section 1172.6 appeal, including the right to file a supplemental brief and the court's independent review of the record.
- relied: People v. Soto (2020) 51 Cal.App.5th 1043 — Holds that a defendant does not make a prima facie showing of eligibility for section 1172.6 relief if the jury was not instructed on imputed malice theories for the specific murder count, even if such instructions were given for other counts.
- relied: People v. Lewis (2021) 11 Cal.5th 952 — Cited for the proposition that People v. Soto was overruled on another ground, but the specific holding regarding the necessity of imputed malice instructions for the murder count remains relevant to the eligibility analysis.
The appellate opinion: sound — The opinion is procedurally sound, correctly applying the Delgadillo framework for independent review. It accurately identifies that eligibility for section 1172.6 relief requires a showing that the defendant could have been convicted under a theory of imputed malice, which is absent here based on the jury instructions.
The San Diego Superior Court denied Jose Felipe Evan's Penal Code section 1172.6 resentencing petition at the prima facie stage after appointing counsel, finding him ineligible for relief from his 1991 second degree murder conviction. On appeal, counsel filed a Delgadillo brief, Evan filed a supplemental brief raising unrelated sentencing claims, and the Court of Appeal affirmed, holding the record of conviction showed the jury was never instructed on any imputed malice theory for the murder count.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1172.6 petition at the prima facie stage on the ground that the record of conviction establishes ineligibility as a matter of law“He could not have been convicted under a theory of imputed malice because the jury was not instructed on felony murder, the natural and probable consequences doctrine, or any other theory of imputed malice for the murder count.” | de novo | correct | agree with court The opinion does not expressly name a standard, but it decides eligibility 'as a matter of law' from the record of conviction, which is a de novo inquiry under Lewis. Section 1172.6 relief is available only to defendants convicted under felony murder, natural and probable consequences, or another theory under which malice is imputed; where the jury instructions on the murder count contained no such theory, the petitioner cannot make a prima facie showing and the trial court may deny the petition without an evidentiary hearing. The court correctly rejected the argument that imputed malice instructions given only on the vehicle taking count could support eligibility, relying on Soto, which addressed the analogous situation of natural and probable consequences instructions limited to a non-murder count. Counsel was appointed and a hearing held, so the Lewis procedural requirements were met. |
Rejection of supplemental brief claims seeking sentence modification under other Penal Code provisions and resentencing statutes“These issues are not related to his eligibility for relief under section 1172.6 and are not cognizable on appeal from the denial of his petition for resentencing under section 1172.6.” | de novo | correct | agree with court An appeal from the denial of a section 1172.6 petition is limited to the propriety of that order; claims for relief under other statutes were not presented to or decided by the trial court in this proceeding and cannot be raised for the first time on this appeal. Under Delgadillo the reviewing court must evaluate the specific arguments in a supplemental brief, which the court did before concluding they were outside the scope of the appeal. This is consistent with the limited jurisdiction of a postconviction appeal and with Delgadillo's framework. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende/Anders independent review is not constitutionally required on appeal from denial of a section 1172.6 petition; when counsel finds no arguable issues the court must notify the defendant, evaluate any supplemental brief, and may exercise discretion to independently review the record.
- relied: People v. Soto (2020) 51 Cal.App.5th 1043 — A petitioner fails to make a prima facie showing of eligibility where the jury was instructed on the natural and probable consequences doctrine only for a non-murder count and not for the murder count.
- relied: People v. Lewis (2021) 11 Cal.4th 952 — Cited as overruling Soto on another ground; establishes that counsel must be appointed upon a facially sufficient petition and that the court may rely on the record of conviction to deny a petition at the prima facie stage where ineligibility is established as a matter of law.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Procedure for independent appellate review when appointed counsel finds no arguable issues on a first appeal of right; recognized as inapplicable to section 1172.6 appeals.
The appellate opinion: sound — The court applied the Delgadillo framework correctly, considered the supplemental brief, and resolved eligibility on the dispositive ground that the murder count instructions contained no imputed malice theory, citing apposite authority in Soto. The opinion is brief and does not expressly state the standard of review or describe the murder instructions in detail, but the record described supports the result and no argument is left unanswered.
Opinion
Filed 8/29/25 P. v. Evan CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084910
Plaintiff and Respondent, v. (Super. Ct. No. CR119743)
JOSE FELIPE EVAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Steven E. Stone, Judge. Affirmed. Jose Felipe Evan, in pro. per.; and Richard L. Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. Jose Felipe Evan appeals an order denying his petition for resentencing under Penal Code1 section 1172.6. His appellate counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Evan filed a supplemental brief. We have reviewed the record and issues raised in 1 Further undesignated statutory references are to the Penal Code. Evan’s supplemental brief. (Id. at p. 232.) We conclude the issues identified by Evan are not relevant to his eligibility for relief under section 1172.6. We affirm the order denying his petition for resentencing under section 1172.6. In 1991, a jury convicted Evan of second degree murder (§ 187, subd. (a)); felon in possession of a firearm (§ 12021, subd. (a)); unlawful taking of a vehicle (Veh. Code § 10851, subd. (a)); receiving stolen property (§ 496.1); possession of a sawed-off shotgun (§ 12020, subd. (a)); and carrying a dirk or dagger (§ 12020, subd.(a)). The jury found true an allegation Evan personally used a firearm during the commission of the murder (§ 12022.5, subd. (a)). It also found Evan had suffered a prior serious felony conviction and a term of imprisonment (§§ 667, subd. (a); 667.5, subd. (b)). The court sentenced Evan to a total of 25 years to life for murder—which included enhancements for personally using a firearm and suffering a prior serious felony—plus 5 years 4 months for the remaining counts. On direct appeal, we struck Evan’s conviction for receiving stolen property because it was possible his convictions for unlawfully taking a vehicle and receiving stolen property resulted from the same act. We also reduced his prison term for unlawfully taking a vehicle from four years to three years because the statutory punishment for that crime was reduced before the judgment in his case became final. We affirmed the judgment in all other respects. (People v. Evan (June 8, 1993, D016002) [nonpub. opn.].) In 2024, Evan filed a petition for resentencing under section 1172.6, asserting he could not be convicted of murder under a presently lawful theory of liability. He requested appointment of counsel. The court appointed counsel and set a prima facie hearing. At the prima facie hearing, the court denied Evan’s petition. Evan appealed.
2 Evan’s appellate counsel filed a brief pursuant to Delgadillo, supra, 14 Cal.5th at pp. 231–232, indicating counsel thoroughly reviewed the record in this case and found no arguable issues. Counsel included a concise recitation of facts regarding the denial of the resentencing petition and identified the following issue to assist the court in its review: Did the court err in its determination of Evan’s ineligibility for relief? Counsel recognized the procedures set forth in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 do not apply in cases of appeals from denial of postconviction petitions for resentencing under section 1172.6 but requested on Evan’s behalf that this court conduct an independent review of the record. (Delgadillo, at p. 222.) Consistent with the procedure articulated in Delgadillo, we issued an order advising Evan of his right to file a supplemental brief. Evan filed a supplemental brief asserting his sentence should be modified under several other Penal Code sections and resentencing statutes that he alleges apply to his case. These issues are not related to his eligibility for relief under section 1172.6 and are not cognizable on appeal from the denial of his petition for resentencing under section 1172.6. Our discretionary independent review of the record does not reveal any arguable issues for reversal of the order denying Evan’s petition for resentencing under section 1172.6. Evan had appointed counsel at the prima facie hearing, and his record of conviction establishes he is ineligible for relief as a matter of law. He could not have been convicted under a theory of imputed malice because the jury was not instructed on felony murder, the natural and probable consequences doctrine, or any other theory of imputed malice for the murder count. It is not sufficient that the jury was instructed on imputed malice theories for the 3 unlawful taking of a vehicle count because the instructions were limited to that other count. (See People v. Soto (2020) 51 Cal.App.5th 1043, 1054–1059 [concluding the defendant did not make a prima facie showing of eligibility when the jury was instructed on the doctrine of natural and probable consequences for the crime of involuntary manslaughter but not for the crime of murder], overruled on another ground by People v. Lewis (2021) 11 Cal.5th 952, 961–962.) Because Evan could not have been convicted under a theory of imputed malice, he is ineligible for resentencing relief under section 1172.6. DISPOSITION The order denying Evan’s petition for resentencing under section 1172.6 is affirmed.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12