People v. Rosales CA2/6

DISCUSSION

Where, as here, appointed counsel finds no arguable issues in an appeal from a section 1172.6 denial, appellant is not entitled to our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. (Delgadillo, supra, 14 Cal.5th at pp. 231-232.) He is, however, entitled to appellate consideration of the arguments raised in his supplemental brief. (Ibid.) In that brief, appellant argues the jury could have imputed malice based on the jury instructions for aiding and abetting, implied malice, and lying-in-wait murder. (See People v. Maldonado (2023) 87 Cal.App.5th 1257.) But the jury was not instructed on either aiding and abetting or lying-in-wait murder. Nor was it instructed on felony murder or the natural and probable consequences doctrine. The instructions simply did not allow the jury to convict appellant under the natural and

2 probable consequences doctrine, felony murder, or any other theory imputing malice based solely on his participation in a crime. (§ 1172.6, subd. (a).) He is ineligible for relief as a matter of law, and the trial court properly denied his petition. (Cf. People v. Harden (2022) 81 Cal.App.5th 45, 52.) Appellant argues…