People v. Salome CA4/1

California Court of Appeal · D078883 · 2021-11-09 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of Riverside County · No. INF1600779
Trial judge: John D. Molloy
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Judith L. Haller, Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:59Z · confidence low

The trial court denied Salome's petition for resentencing under Penal Code section 1170.95, finding he was ineligible because he was prosecuted as a direct aider and abettor with intent to kill. The Court of Appeal affirmed the denial after conducting an independent review of the record pursuant to Wende and finding no arguable issues for reversal.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1170.95 “The court found Salome was not eligible for resentencing.”	de novo	correct	agree with court The appellate court affirmed the trial court's denial, finding no error after independent review. The trial court correctly determined that Salome, as a direct aider and abettor who acted with malice and intent to kill, was not eligible for resentencing under section 1170.95, as the statute does not apply to those convicted of direct aiding and abetting with specific intent to kill.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by the appellate court when appointed counsel files a Wende brief identifying no arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to identify potential issues and the court to independently review the record when counsel concludes no arguable issues exist.

The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for independent review when counsel identifies no arguable issues. However, it is a 'sound with gaps' opinion because it fails to explicitly cite the specific legal authority (such as People v. Strong or People v. Gentile) that establishes the ineligibility of direct aiders and abettors with intent to kill under section 1170.95, relying instead on a general statement of no error found.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

After issuing an order to show cause and holding a contested evidentiary hearing on Salome's Penal Code section 1170.95 petition, the trial court found him ineligible for resentencing because he was prosecuted as a direct aider and abettor acting with intent to kill and the jury was never instructed on felony murder or the natural and probable consequences doctrine. On appeal, appointed counsel filed a Wende brief, the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed the order denying the petition.

Ruling reviewed	Standard	The court	The model
Denial of section 1170.95 resentencing petition after evidentiary hearing on the ground that Salome was convicted as a direct aider and abettor with intent to kill and the jury was not instructed on felony murder or natural and probable consequences “The court noted the jury was not instructed on the felony murder rule or the natural and probable consequences doctrine. The court found Salome was not eligible for resentencing.”	unclear	correct	agree with court The opinion does not articulate a standard of review; it conducts Wende/Anders independent review and finds no arguable issue. On the facts recited, the result is correct: Senate Bill 1437 narrowed only felony-murder and natural-and-probable-consequences liability, and a defendant whose jury was never instructed on either theory and who was prosecuted as a direct aider and abettor acting with malice remains liable under amended sections 188 and 189. The parties agreed at the hearing on the theory of prosecution, which removes any factual dispute. The opinion, however, offers no analysis of the two issues counsel flagged and cites no section 1170.95 authority.
Appellate court's decision to apply Wende independent review to this postconviction appeal rather than resolve whether such review is required “We decline to address the several Court of Appeal opinions that have held such judicial review is not required.”	de novo	not reached	agree with court The court expressly declined to decide whether Wende review applies to appeals from denial of section 1170.95 petitions, but conducted the review anyway. Performing the review is harmless to the defendant and within the court's discretion; the question was then unsettled among the Courts of Appeal (e.g., People v. Cole and People v. Flores) and had not been resolved by the Supreme Court as of this opinion. Declining to reach the issue is defensible but leaves a gap.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous must file a brief referring to anything in the record that might arguably support the appeal.
missed: People v. Lewis (2021) 11 Cal.5th 952 — Courts may rely on the record of conviction, including jury instructions, in determining section 1170.95 eligibility; a petitioner is ineligible as a matter of law where the record shows the jury was not instructed on felony murder or natural and probable consequences.
missed: People v. Gentile (2020) 10 Cal.5th 830 — Senate Bill 1437 eliminated natural and probable consequences liability for murder but did not alter direct aiding and abetting liability, which requires the aider and abettor's own malice.

The appellate opinion: sound with gaps — The result is clearly correct because the record shows Salome was tried solely as a direct aider and abettor with intent to kill and the jury received no felony-murder or natural-and-probable-consequences instructions, making him ineligible under section 1170.95 as a matter of law. But the opinion supplies no analysis of the two Anders issues counsel identified, cites no section 1170.95 authority such as Lewis or Gentile, and sidesteps the then-live question whether Wende review applies to postconviction appeals.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 11/9/21 P. v. Salome 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, D078883

Plaintiff and Respondent, v. (Super. Ct. No. INF1600779)

ABEL JOSUE SALOME,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2017, a jury convicted Abel Josue Salome of first degree murder (Pen. Code,1 § 187, subd. (a)) and found that a principal was armed with a firearm (§ 12022, subd. (a)(1)). Salome was sentenced to a determinate term of one year plus an indeterminate term of 25 years to life in prison.

1 All further statutory references are to the Penal Code. Salome appealed and this court affirmed the judgment in an unpublished opinion, People v. Salome, D074447 (Dec. 26, 2018).2 In December 2018, Salome filed a petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, issued an order to show cause, and held a contested evidentiary hearing. At the hearing, the parties agreed Salome was prosecuted as a direct aider and abettor who acted with malice and the intention to kill. The court noted the jury was not instructed on the felony murder rule or the natural and probable consequences doctrine. The court found Salome was not eligible for resentencing. Salome filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to independently review the record for error as mandated by Wende. We offered Salome the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS The facts of the offense are fully set forth in our prior opinion. We will not repeat them here. (People v. Salome, supra, D074447.) DISCUSSION As we have noted appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel 2 On our own motion, we take judicial notice of our records in case No. D074447. 2 has identified the following possible issues that were considered in evaluating the potential merits of this appeal.3 1. Did section 1170.95, subdivision (c) require the trial court to review the record of the case to consider the sufficiency of evidence that Salome had the intent to kill the victim? 2. Did section 1170.95, subdivision (c) require the court to grant relief unless, based on the record of the case, the prosecution could prove that beyond a reasonable doubt that Salome had harbored malice as required by amended Penal Code sections 188 and 189? We have independently reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Salome on this appeal.

3 Salome devotes a considerable portion of his brief to the argument we should apply the Wende independent judicial review process to this appeal. We decline to address the several Court of Appeal opinions that have held such judicial review is not required. 3 DISPOSITION The order denying Salome’s petition for resentencing under section 1170.95 is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12