People v. Ceballos CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCE358753
- Trial judge
- Frank L. Birchak
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Laurence D. Rubin, Joan K. Irion
Analysis
The trial court denied Ceballos's petition for resentencing under former section 1170.95 (now 1172.6), finding she was ineligible as a matter of law because the record established she was the actual killer who used a knife. The Court of Appeal affirmed the denial after conducting an independent review of the record pursuant to People v. Wende and finding no meritorious issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under former section 1170.95 (now 1172.6) without issuing an order to show cause or holding an evidentiary hearing.“As such, the court found Ceballos was ineligible for resentencing as a matter of law. The court denied the petition without issuing an order to show cause or holding an evidentiary hearing.” | de novo | correct | agree with court The appellate court affirmed the trial court's determination that Ceballos was ineligible for resentencing. Under section 1172.6, a petitioner is ineligible if they were the actual killer or acted with intent to kill. The record demonstrated Ceballos was the actual killer who used the knife, and the jury was not instructed on felony murder or natural and probable consequences. Therefore, the trial court correctly found her ineligible as a matter of law at the prima facie stage. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Guidance for appellate counsel in pro per appeals to identify potentially meritorious issues.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by the court of appeal when appointed counsel finds no meritorious issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any potentially meritorious issues before withdrawing.
The appellate opinion: sound — The opinion is sound because it correctly applies the Wende/Anders procedure to review the record independently and confirms the trial court's factual finding that the petitioner was the actual killer, which renders her ineligible for resentencing under section 1172.6. The court properly notes that the petitioner's supplemental briefs did not challenge the specific legal basis for the denial (actual killer status) but rather raised unrelated mental state arguments.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Cindy Ceballos's Penal Code section 1172.6 resentencing petition at the prima facie stage, finding her ineligible as a matter of law because the jury was not instructed on felony murder or natural and probable consequences and the record showed she was the actual killer who stabbed the victim. On appeal, counsel filed a Delgadillo/Wende brief, Ceballos filed two supplemental briefs arguing lack of intent and impaired mental state, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1172.6 petition at the prima facie stage, without issuing an order to show cause or holding an evidentiary hearing, on the ground that Ceballos was the actual killer and the jury was not instructed on felony murder or natural and probable consequences“The court found the jury was not instructed on felony murder or natural and probable consequences. The record demonstrated Ceballos was the actual killer who used the knife in the commission of the crime.” | unclear | correct | agree with court Section 1172.6 relief is available only to defendants convicted under felony murder, natural and probable consequences, or another theory imputing malice based solely on participation in a crime. Jury instructions are part of the record of conviction that a trial court may consult at the prima facie stage, and where the jury was instructed only on direct theories of malice murder and the defendant was the actual killer, ineligibility is established as a matter of law. Ceballos's supplemental briefs attack intent and mental state, which are challenges to the original conviction and not cognizable in a section 1172.6 proceeding. The result follows from the statute, though the opinion does not state the governing prima facie standard or cite People v. Lewis. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende independent review is not constitutionally required in appeals from denial of section 1172.6 petitions; the appellate court must evaluate arguments in a defendant's supplemental brief and may in its discretion conduct independent review.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Procedure for appellate independent review of the record when appointed counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous should identify 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 consult the record of conviction, including jury instructions, and may deny the petition without an order to show cause only where the record establishes ineligibility as a matter of law without factfinding or credibility determinations.
The appellate opinion: sound with gaps — The court properly followed Delgadillo by addressing Ceballos's supplemental briefs and explaining why her intent and mental-state arguments do not bear on section 1172.6 eligibility, and the actual-killer/no-imputed-malice-instruction basis for denial is correct. The opinion is thin, however: it does not articulate the Lewis prima facie standard or cite it, and simply recites the trial court's findings before concluding no meritorious issue exists.
Opinion
Filed 7/25/23 P. v. Ceballos 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, D081195
Plaintiff and Respondent, v. (Super. Ct. No. SCE358753)
CINDY MARIE CEBALLOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Frank L. Birchak, Judge. Affirmed. Cindy Marie Ceballos, in pro. per.; and Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2017, a jury convicted Cindy Marie Ceballos of first degree murder (Pen. Code,1 § 187, subd. (a)) and found that she used a deadly weapon 1 All statutory references are to the Penal Code unless otherwise specified. (a knife) in the commission of the offense (§ 12022, subd. (b)(1)). The court sentenced Ceballos to an indeterminate term of 26 years to life in prison. Ceballos appealed and this court affirmed the conviction in an unpublished opinion. (People v. Ceballos (Nov. 5, 2018, D072734).) In 2022, Ceballos filed a pro. per. petition for resentencing under former section 1170.95 (now renumbered section 1172.6) using the form petition. The court appointed counsel, received briefing, reviewed the record of conviction, and held a hearing. The court found the jury was not instructed on felony murder or natural and probable consequences. The record demonstrated Ceballos was the actual killer who used the knife in the commission of the crime. As such, the court found Ceballos was ineligible for resentencing as a matter of law. The court denied the petition without issuing an order to show cause or holding an evidentiary hearing. Ceballos filed a timely notice of appeal. Appellate counsel has filed a brief following the guidance provided in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Counsel asks the court to exercise its discretion and conduct an independent review of the record for error consistent with People v. Wende (1979) 25 Cal.3d 436 (Wende). We offered Ceballos the opportunity to submit her own brief on appeal. She has filed two supplemental briefs which we will discuss later in this opinion. STATEMENT OF FACTS We will adopt the summary of the facts of the offense provided in the appellant’s opening brief for convenience. Ceballos and the victim, Christalina, both dated Darryl, which created jealousy between Ceballos and Christalina. The morning of the killing, Christalina received a text message from Darryl stating that Natalie, 2 Casandra, and Ceballos were going to “ ‘kick [Christalina’s] ass.’ ” Christalina drove to the house where Ceballos was living to find out if Ceballos actually wanted to fight. Upon arrival, Darryl was outside. After arguing with Darryl and learning Ceballos was not there, Christalina drove back home. Sometime thereafter, Darryl, Ceballos, as well as Natalie and Casandra, drove to Christalina’s house, where Ceballos planned to fight Christalina. Upon arrival, Ceballos pounded on Christalina’s front door and yelled for her to open the door. Darryl also yelled for Christalina to “get out here.” When Christalina did not open the door, everyone ran to the back yard. Ceballos waited for Christalina near the back door holding an eight inch long knife in her right hand down at her side. Natalie told Ceballos to give her the knife but Ceballos refused. Natalie also tried, unsuccessfully, to wrestle it away. Darryl told Ceballos to put the knife away because she was going to hurt somebody. Christalina came out the back door, unarmed. Noting Ceballos had a knife, Christalina stated she would get her gun and “stop this right now.” Christalina retrieved a shotgun and fired a warning shot from the front yard. Upon hearing the shot, everyone (except Natalie) ran to the front of the house. When Darryl reached the front door, he wrestled the shotgun away from Christalina and used it to knock her to the ground. After Casandra laughed at Christalina, a brief fist fight ensued between Christalina and Casandra near the front door. Meanwhile, Ceballos came to the front of the house and stabbed Christalina in the upper abdomen while she stood in the doorway. Ceballos followed Christalina inside the house. Ceballos repeatedly stabbed Christalina in the torso and then, after pausing a moment, stabbed her in the neck. One of the stab wounds pierced 3 Christalina’s heart. Another punctured Christalina’s lung. Christalina died at the scene. Ceballos raised issues of her mental health and drug use in her defense. (People v. Ceballos, supra, D072734.) DISCUSSION As we have noted, appellate counsel asks the court to independently review the record for error consistent with the Wende procedure. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified a possibly meritorious issue that was considered in evaluating the potential merits of this appeal: Whether the trial court erred in finding Ceballos was ineligible for relief under section 1172.6. In her supplemental briefs, Ceballos does not discuss matters relevant to the denial of her petition. Rather, she says she did not intend to kill the person she stabbed and that she had an impaired mental state at the time. She does not deny she was the actual killer. Nor does Ceballos disagree with the court’s determination that the jury was not instructed on felony murder or natural and probable consequences. The thrust of the supplemental briefs is that Ceballos should not have been convicted of first degree murder. The supplemental briefs do not identify any potentially meritorious issues regarding the denial of her petition for resentencing under section 1172.6. We have independently reviewed the record consistent with Wende and Anders. We have not discovered any meritorious issues for reversal on appeal. Competent counsel has represented Ceballos on this appeal.
4 DISPOSITION The order denying the petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
RUBIN, J.
Cites, in this corpus
- People v. Delgadillo S266305 · 2022-12-19
- People v. Wende Crim. 20851 · 1979-10-12