Filed 5/4/22 P. v. Rayos CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B314301

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA108801-03) v.

DIANA RAYOS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. Affirmed.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________ We review this appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. On March 10, 2010, a jury convicted appellant of first degree murder with a true finding of a criminal street gang enhancement. The evidence adduced at trial was that appellant, among others, stood on the street watching a fight between enemy gang members, one of whom was appellant’s boyfriend, Cesar Otero. Cesar’s little brother, Julio Otero, ran towards the scene of the fight, where he paused briefly. Appellant handed an object to Julio who then rushed forward and began fighting with a rival gang member, whom he struck on the temple. Blood gushed from the victim’s head; he fell to the ground and later died from a stab wound, which penetrated his brain. The wound was inflicted with a sharp object, such as a screwdriver or ice- pick. One witness testified he saw Julio get a “pointy thing” from appellant before he started fighting the victim. The object was metal and had a point. The trial court sentenced appellant to an indeterminate term of 25 years to life for first degree murder. On appeal we affirmed the judgment. (People v. Julio Otero et al. (July 12, 2012, B225496) [nonpub. opn.].) On May 22, 2018, pursuant to People v. Chiu (2014) 59 Cal.4th 155, appellant’s sentence was vacated and she was resentenced to an indeterminate term of 15 years to life for second degree murder. On January 4, 2019, appellant filed a petition for resentencing pursuant to Penal Code section 1170.95. The trial court appointed counsel to represent appellant, found she had presented a prima facie case of eligibility for relief, and held an evidentiary hearing on the petition. The court “read and

2 considered all motion and court documents related” to the case. The parties presented no additional testimonial or documentary evidence at the hearing. Appellant argued she could no longer be convicted of murder because the natural and probable consequences doctrine had been abrogated. The trial court denied the petition, finding beyond a reasonable doubt that by handing the sharp object to Julio Otero during the fight, appellant directly aided and abetted the murder with intent to kill. On October 27, 2021, we appointed counsel to represent appellant on appeal. On December 20, 2021, counsel filed an opening brief raising no issues and asking this court to review the record independently as required by People v. Wende. Counsel also declared under penalty of perjury that he had written to appellant to explain his evaluation of the record and his intention to file a Wende brief. He informed appellant of her right to file a supplemental brief and sent her copies of the transcripts of the record on appeal and the brief. On December 20, 2021, we advised appellant she had 30 days within which to personally submit contentions or issues she wants us to consider. No supplemental brief has been filed. We have examined the record and are satisfied appellant’s counsel fully complied with his responsibilities and no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende, supra, 25 Cal.3d at p. 441.)

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DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

HARUTUNIAN, J.*

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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