People v. Berry-Vierwinden

Full title: THE PEOPLE, Plaintiff and Respondent, v. RYAN BERRY-VIERWINDEN, Defendant…

Court: COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jul 15, 2020

D077327 (Cal. Ct. App. Jul. 15, 2020)

Opinion

D077327

07-15-2020

THE PEOPLE, Plaintiff and Respondent, v. RYAN BERRY-VIERWINDEN, Defendant and Appellant.

Ryan Berry-Vierwinden, in pro. per.; and Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

HUFFMAN, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF121073) APPEAL from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Ryan Berry-Vierwinden, in pro. per.; and Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Ryan Berry-Vierwinden was convicted of first degree murder (Pen. Code,¹ § 187, subd. (a)) in 2010. He was sentenced to an indeterminate term of 25 years to life. We affirmed Berry-Vierwinden's conviction and sentence in 2012 in an unpublished opinion filed November 27, 2012. (People v Berry-Vierwinden (Nov. 27, 2012, D059670) [nonpub. opn.].)²

1 All further statutory references are to the Penal Code.

2 We take judicial notice of the record and our prior opinion in case No. D059670. --------

In March 2019, Berry-Vierwinden filed a petition for resentencing under section 1170.95. Berry-Vierwinden contended he was convicted as an aider and abettor on a theory of natural and probable consequences. He alleged he was entitled to have his murder conviction set aside under Senate Bill No. 1437 and section 1170.95.

The trial court appointed counsel and ordered further briefing. In February 2020, the court held a hearing on the petition. The court found, based on this court's prior opinion, that Berry-Vierwinden had been tried as a direct aider and abettor and not on a natural and probable consequences theory. The court summarily denied the petition.

Berry-Vierwinden filed a timely notice of appeal.

Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel 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 Berry-Vierwinden the opportunity to file his own brief on appeal and he has responded with a supplemental brief. We will discuss that brief below.

STATEMENT OF FACTS

The facts of the offense and the procedural events from the trial are fully set forth in our prior opinion. We find it unnecessary to repeat the facts here since we have taken judicial notice of the opinion and the record.

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 of the record, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issue for our consideration: whether the trial court erred in summarily denying Berry-Vierwinden's petition without further briefing and evidentiary hearing.

In his supplemental brief, Berry-Vierwinden raises two basic issues. First, he contends he was not tried on a theory of direct aiding and abetting. Instead, he contends he was tried on the theory he was aiding and abetting a different felony, the natural and probable consequences of which was first degree murder by lying in wait. His second contention is the prosecutor engaged in misconduct. His submission on this issue is that the prosecutor was later disbarred for an unrelated matter. The discussion is based on documents from the State Bar and newspaper articles, all of which are outside the record in this case. Berry-Vierwinden's supplemental brief does not raise any arguable issues for reversal on appeal based on the record.

We have reviewed the entire record as mandated by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Berry-Vierwinden on this appeal.

DISPOSITION

The order denying Berry-Vierwinden's petition for resentencing under section 1170.95 is affirmed.

HUFFMAN, J. WE CONCUR: McCONNELL, P. J. AARON, J.