People v. Hayes CA4/1 ( 2021 )

Filed 1/20/21 P. v. Hayes CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077916
Plaintiff and Respondent,
v. (Super. Ct. No. SCE319579)
ALFREDO A. HAYES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Daniel G. Lamborn, Judge. Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In May 2013, Alfredo Hayes pleaded guilty to second degree murder
(Pen. Code,1 § 187, subd. (a)) and robbery (§ 211). He admitted that he
unlawfully killed the victim and that he personally used a firearm in the
commission of each count (§ 12022.53, subd. (b)). The court sentenced Hayes
1 All further statutory references are to the Penal Code.
to an indeterminate term of 25 years to life. Hayes did not appeal his
conviction.
In February 2019, Hayes filed a petition for resentencing under
section 1170.95, alleging he was convicted of felony murder under a theory of
natural and probable consequences and that he could not now be convicted of
the same offense under current law.
The court appointed counsel and obtained briefing from both parties.
Citing the change of plea form, the prosecution argued Hayes admitted he
was the actual killer who shot the victim. The court denied the petition,
finding Hayes was not eligible for relief as a matter of law since he was the
actual killer.
Hayes filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating he has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Hayes the opportunity to
file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
Hayes and an accomplice met with the victim to conduct a drug
purchase. During the discussion, Hayes took out a handgun and demanded
the victim’s drugs. The victim refused and Hayes shot him in the head.
During the police investigation, Hayes admitted he shot the victim but
claimed it was an accident.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review, and
in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
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has identified the following possible issue which was considered in evaluating
the merits of this appeal: Whether the court erred in denying Hayes’s
petition.
We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Hayes on this appeal in denying Hayes’s
petition based on a review of the record of conviction.
DISPOSITION
The order denying the petition for resentencing under section 1170.95
is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
DATO, J.
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