People v. Agosta CA4/3 ( 2022 )

Filed 8/23/22 P. v. Agosta 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G061330
v. (Super. Ct. No. 11CF1595)
JOHN RAND AGOSTA, OPI NION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Steven D.
Bromberg, Judge. Affirmed.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance by Plaintiff and Respondent.
* * *
The trial court denied defendant John Rand Agosta’s former Penal Code
section 1170.95 petition seeking to vacate his murder conviction and to be resentenced
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(now Pen. Code, § 1172.6). The court found: “The record of conviction reflects the
petitioner was the . . . actual killer and therefore ineligible for relief.”
Agosta filed a notice of appeal. Appointed appellate counsel filed an
opening brief raising no arguable issues. (See People v. Wende (1979) 25 Cal.3d 436(Wende).) Agosta did not file a supplemental brief on his own behalf.
In the interests of justice, this court has reviewed the record and found no
arguable issues. (See People v. Flores (2020) 54 Cal.App.5th 266, 268.) Thus, we affirm
the order of the trial court.
I
BRIEF FACTS AND PROCEDURAL HISTORY
In June 2011, Agosta shot his estranged wife nine times. A jury found
Agosta guilty of first degree murder and an enhancement for personal discharge of a
firearm causing death. (§§ 187, 12022.53, subd. (d).) The trial court imposed a sentence
of 25 years to life.
In January 2022, Agosta filed a petition for resentencing. Agosta averred
“A complaint, information, or indictment was filed against me that allowed the
prosecution to proceed under a theory of felony murder, murder under the natural and
probable consequences doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime, or attempted murder under
the natural and probable consequences doctrine.”
In March 2022, the prosecution filed a response. The response included a
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Further undesignated statutory references are to the Penal Code. The Legislature
renumbered former section 1170.95 without substantive change, effective June 30, 2022.
(Stats. 2022, ch. 58, § 10.)
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copy of the jury’s verdict forms, the underlying unpublished opinion, and a copy of the
jury instructions.
In April 2022, the trial court conducted a prima facie hearing and denied
Agosta’s petition. The court stated: “The record of conviction reflects the petitioner was
the actual perpetrator as such, he was the actual killer and therefore ineligible for relief.
The jury instructions for felony murder, natural and probable consequences or aiding and
abetting were not given to the jury.”
II
DISCUSSION
When appointed counsel has identified no arguable issues on appeal, the
appellate court independently reviews the record for any arguable issues. (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.)
In this case, we have reviewed the record on appeal. Based on our
independent judgment and analysis, we have similarly found no arguable issues that
require briefing or argument. (See Wende, supra, 25 Cal.3d at p. 442, fn. 3.) The first
degree murder conviction, the true finding on the firearm enhancement, and the jury
instructions all confirm Agosta was the actual killer.
Thus, Agosta 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.)
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III
DISPOSITION
The order is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
SANCHEZ, J.
MOTOIKE, J.
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