DISCUSSION

When appointed counsel has identified no arguable issues on appeal, an appellate court independently reviews the record for any arguable issues. (People v. Wende, supra, 25 Cal.3d at pp. 441-442.) Generally, “an arguable issue on appeal consists of two elements. First, the issue must be one which . . . is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.) Here, at the time of the trial, the court instructed the jury regarding the felony-murder rule, but the prosecution did not allege a felony-murder special- circumstance enhancement. (See § 190.2, subd. (d).) Thus, the jury did not make a finding that Sierra was not a major participant and/or that he did not act with reckless indifference to human life as he alleges in his petition. (See § 190.2, subd. (d).) Effective January 1, 2022, the statute provides: “If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6, subd. (c); Senate Bill No. 775 (2020-2021 Reg. Sess.); Stats. 2021, ch. 551, § 2.) In this case, the trial court committed a procedural error by not fully setting forth its reasons for denying Sierra’s petition. However, without considering the facts of the case, Sierra is still liable under current law because the jury’s guilty verdict on the murder charge and its true finding on the firearm enhancement establish that he was the

3 actual killer. (See § 189, subd. (e)(1).) In other words, the error could not result in a reversal or a modification of the court’s ruling; therefore, the procedural error is not an 2 arguable issue on appeal. (See People v. Johnson, supra, 123 Cal.App.3d at p. 109.) In sum, after our independent review, we find Sierra is ineligible for relief under section 1172.6 as a matter of law and the trial court properly denied the petition at the prima facie stage. (See People v. Lewis (2021) 11 Cal.5th 952, 961-970.)

III

DISPOSITION

The order is affirmed.

MOORE, ACTING P. J.

WE CONCUR:

MOTOIKE, J.

DELANEY, J.

2 Although the error is harmless in this case, we caution the trial court to be mindful of its obligations under section 1172.6, subdivision (c), in all future relevant proceedings.

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