People v. Saldana CA4/1

California Court of Appeal · D080412 · 2022-10-13 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Bernardino County · No. FWV1102225
Trial judge: Ingrid Adamson Uhler
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Judith D. McConnell, O'Rourke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:43Z · confidence low

The trial court denied Saldana's second petition for resentencing under Penal Code section 1172.6, finding he was convicted as a direct aider and abettor and the jury was not instructed on felony murder or natural and probable consequences. The Court of Appeal affirmed the denial after an independent review of the record pursuant to People v. Wende.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1172.6 “The court again found the jury was not instructed on felony murder or natural and probable consequences and that Saldana was tried as a direct aider and abettor.”	unclear	correct	agree with court The appellate court affirmed the denial, stating it reviewed the entire record and found no arguable issues for reversal. The court implicitly accepted the trial court's factual finding that Saldana was convicted as a direct aider and abettor, which is a prerequisite for eligibility under section 1172.6. The court rejected Saldana's argument that the conspiracy instruction rendered him eligible, noting his submission did not raise arguable issues.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error when no arguable issues are identified.
relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying any arguable issues and the court to conduct an independent review of the record.

The appellate opinion: sound — The opinion is procedurally sound as it follows the Wende/Anders protocol for reviewing a record when counsel finds no arguable issues. It correctly identifies that the trial court's finding of direct aiding and abetting liability precludes relief under section 1172.6, and it addresses the appellant's specific argument regarding the conspiracy instruction by finding it non-arguable.

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

The trial court summarily denied Saldana's second Penal Code section 1172.6 resentencing petition after appointing counsel, finding the jury was not instructed on felony murder or natural and probable consequences and that he was tried as a direct aider and abettor. On appeal, appointed counsel filed a Wende brief, Saldana filed a supplemental brief arguing the conspiracy instruction was equivalent to a natural-and-probable-consequences theory, and the Court of Appeal found no arguable issues and affirmed.

Ruling reviewed	Standard	The court	The model
Denial of second section 1172.6 petition at the prima facie stage on the ground the jury was not instructed on felony murder or natural and probable consequences and the defendant was tried as a direct aider and abettor “The court again found the jury was not instructed on felony murder or natural and probable consequences and that Saldana was tried as a direct aider and abettor.”	unclear	correct	unsure The court conducted a Wende/Anders independent review and found no arguable issue, but it did not explain why Saldana's argument that an uncharged conspiracy instruction operated like a natural-and-probable-consequences theory fails. If the instruction was on conspiracy to commit murder, that theory requires intent to kill and would bar relief, which would make the ruling correct; however, the opinion does not describe the instruction's content, cite People v. Lewis on the prima facie standard, or address the successive-petition posture, so the result is plausible but not demonstrated on the face of the opinion.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal independently reviews the record for error.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal lacks merit should file a brief identifying anything in the record that might arguably support the appeal.
missed: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage of a section 1172.6 petition the court may rely on the record of conviction, including jury instructions, but may not engage in factfinding; denial is proper only where the record refutes the petitioner's allegations as a matter of law.
missed: People v. Swain (1996) 12 Cal.4th 593 — Conspiracy to commit murder requires a specific intent to kill (express malice), so a conviction resting on that theory does not involve imputed malice; this would have directly answered Saldana's argument that the conspiracy instruction equated to a natural-and-probable-consequences theory.

The appellate opinion: sound with gaps — The result is defensible because the trial court's finding that the jury was not instructed on felony murder or natural and probable consequences, and that the conspiracy theory was conspiracy to commit murder, would refute eligibility as a matter of law. But the opinion dismisses Saldana's conspiracy-instruction argument in a single sentence without explaining why, cites no section 1172.6 authority such as Lewis, and does not address the successive-petition posture or the ineffective-assistance claim.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 10/13/22 P. v. Saldana 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, D080412

Plaintiff and Respondent, v. (Super. Ct. No. FWV1102225)

EMILIO PELAYO SALDANA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino County, Ingrid A. Uhler, Judge. Affirmed. Emilio Saldana, in pro. per.; and Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. This an appeal from the summary denial of appellant’s second petition for resentencing filed under Penal Code1 former section 1170.95.2 1 All further statutory references are to the Penal Code. In May 2015, a jury convicted Emilio Pelayo Saldana of first degree murder (§ 187, subd. (a)) and found true an allegation that a principal was armed with a firearm during the offense (§ 12022, subd. (a)(1)). Saldana was sentenced to an indeterminate term of 51 years to life in prison. In 2019, Saldana filed his first petition for resentencing under section 1172.6. The court found the jury had not been instructed on felony murder or natural and probable consequences theories of liability and denied the petition. In 2022, Saldana filed the current petition for resentencing under section 1172.6. The court appointed counsel and ultimately denied the petition. The court again found the jury was not instructed on felony murder or natural and probable consequences and that Saldana was tried as a direct aider and abettor. Saldana 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 review the record for error as mandated by Wende. We offered Saldana the opportunity to file his own brief on appeal. He has responded by filing a supplemental brief, which we will discuss below.

2 Former section 1170.95 was renumbered as section 1172.6 without substantive change on June 30, 2022. (See Stats. 2022, ch. 58 (Assem. Bill No. 200) § 10, eff. June 30, 2022.) As such, we refer to the subject statute by its current number throughout this opinion. 2 DISCUSSION3 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 of the record, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified a possible issue that was considered in evaluating the potential merits of this appeal: Whether the court erred in denying Saldana’s petition for resentencing, finding the petition did not state a prima facie case for relief. In his supplemental brief, Saldana argues counsel provided ineffective assistance. He recognizes no instructions were given to the jury on felony murder or liability based on the doctrine of natural consequences. Instead, he relies on the instructions given on liability based on an unpled theory of liability based on participating in a conspiracy to commit murder. Saldana claims the conspiracy instruction has the same legal effect as instructions on natural and probable consequences. Saldana’s submission does not raise any arguable issues for reversal on appeal. We have 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 Saldana on this appeal.

3 The facts of the offense were thoroughly discussed in our prior opinion. We will not repeat them here. (People v. Olvera et al. (Dec. 18, 2017, D072618) [nonpub. opn.].) 3 DISPOSITION The order denying Saldana’s petition for resentencing under section 1172.6 is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

O’ROURKE, J.

Cites, in this corpus

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