People v. Avellaneda CA4/3

Filed 12/15/25 P. v. Avellaneda CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G064990

v. (Super. Ct. No. FVI018893)

ROSE AVELLANEDA, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of San

Bernardino County, John P. Vander Feer, Judge. Affirmed.

Michael C. Sampson, under appointment by the Court of Appeal,

for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

Rose Avellaneda filed a petition for resentencing pursuant to

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Penal Code section 1172.6. At the prima facie hearing on the petition, the

trial court denied Avellaneda resentencing relief. Appointed counsel for

Avellaneda filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th

216 and requested this court conduct an independent review of the entire

record. Avellaneda was given an opportunity to file a supplemental brief but

did not do so.

Exercising our discretion under People v. Delgadillo, supra,

14 Cal.5th at page 232, we examined the entire record and found no

reasonably arguable issue. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2007, a jury found Avellaneda guilty of solicitation of murder

(§ 653f, subd. (b)), premeditated and deliberate attempted murder (§§ 664,

187, subd. (a)), and murder. On direct appeal to this court, Avellaneda’s

attempted murder conviction was reversed and the judgment was affirmed as

to the remaining counts. (People v. Avellaneda (May 26, 2010, G040609)

[nonpub. opn.].) The trial court sentenced Avellaneda to a total term of 34

years in state prison.

In 2024, Avellaneda filed a petition for resentencing pursuant to

section 1172.6. Counsel was appointed. At the prima facie hearing on the

petition, Avellaneda’s trial counsel argued before the court and both parties

submitted on the record of conviction. After considering arguments by

1 All further statutory references are to this code.

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counsel, the information, jury instructions, and jury verdicts, the trial court

found Avellaneda ineligible for resentencing relief and denied her petition.2

Avellaneda filed a timely notice of appeal.

DISCUSSION

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg.

Sess.) (Stats. 2018, ch. 1015) amended the felony murder rule and eliminated

the natural and probable consequences doctrine as it relates to murder “‘to

ensure that murder liability is not imposed on a person who is not the actual

killer, did not act with the intent to kill, or was not a major participant in the

underlying felony who acted with reckless indifference to human life.’”

(People v. Lewis (2021) 11 Cal.5th 952, 959, 967.) Senate Bill No. 1437 also

created procedures “for convicted murderers who could not be convicted

under the law as amended to retroactively seek relief.” (Lewis, at pp. 957,

959.) The Legislature subsequently extended relief to defendants convicted of

attempted murder based on the natural and probable consequences doctrine.

(Sen. Bill No. 775 (2021–2022 Reg. Sess.); Stats. 2021, ch. 551, § 2.)

The process begins when a defendant previously convicted of a

qualifying offense files a petition pursuant to section 1172.6. Once a superior

court receives the petition, it shall appoint counsel upon petitioner’s request.

(§ 1172.6, subd. (b)(1)–(3).) The prosecutor must then file a response to the

petition, and a reply may be filed by the petitioner. (§ 1172.6, subd. (c).) The

trial court shall then “hold a hearing to determine whether the petitioner has

made a prima facie case for relief.” (Ibid.)

2 The trial court noted Avellaneda’s solicitation of murder

conviction is ineligible for section 1172.6 relief.

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At the prima facie hearing, the trial court may rely on the record

of conviction. (People v. Patton (2025) 17 Cal.5th 549, 563; People v. Lewis,

supra, 11 Cal.5th at pp. 970–971.) “The record of conviction will necessarily

inform the trial court’s prima facie inquiry under section [1172.6], allowing

the court to distinguish petitions with potential merit from those that are

clearly meritless.” (Id. at p. 971.) Instructions given to the jury at a

petitioner’s trial may be relied on by the court as part of the record of

conviction at the prima facie hearing. (People v. Soto (2020) 51 Cal.App.5th

1043, 1055.) “It is only where the record of conviction establishes the petition

lacks merit as a matter of law that the court may deny the petition without a

hearing.” (People v. Lopez (2023) 88 Cal.App.5th 566, 576.) We independently

review a summary denial of section 1172.6 petition for resentencing. (People

v. Gaillard (2024) 99 Cal.App.5th 1206, 1211.)

Here, at the prima facie hearing, the trial court reviewed the

information, jury instructions, and verdicts. The jury was not instructed on

the natural and probable consequence doctrine or on any theory of liability

requiring malice to be imputed to Avellaneda based solely on her

participation in the offense. Since the record of conviction established

Avellaneda was not convicted under a vicarious liability theory, relief was

properly denied by the court.

After independently reviewing the entire appellate record, we

find no arguable issue.

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DISPOSITION

The postjudgment order denying the resentencing petition is

affirmed.

MOTOIKE, ACTING P. J.

WE CONCUR:

DELANEY, J.

SCOTT, J.

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