Opinion
D076682
01-30-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWARD BOOTH, Defendant and Appellant.
Edward Booth, in pro. per.; and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF14228) APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa, Judge. Affirmed. Edward Booth, in pro. per.; and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In 2005, Edward Booth was convicted of first degree murder (Pen. Code, § 187, subd. (a)) with an enhancement for use of a firearm (§ 12022.53, subd. (d)). His conviction was affirmed in 2007 in an unpublished opinion. (People v. Booth (Oct. 17, 2007, D047740) [nonpub. opn.].)
All further statutory references are to the Penal Code unless otherwise specified.
In February 2019, Booth filed a petition for resentencing under section 1170.95. In May 2019, the trial court denied the petition
Section 1170.95 provides in pertinent part: a) A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:
(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.
(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder.
(3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.
Booth filed a timely notice of appeal.
Appellate counsel has filed a Wende brief (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 this court to review the record for error as mandated by Wende. We offered Booth the opportunity to file his own brief on appeal, he has responded, and we will discuss his supplemental brief below.
STATEMENT OF FACTS
The facts of the underlying offense are set forth in our opinion in case No. D047740. We will not repeat those facts here.
DISCUSSION
As we have noted counsel has filed a Wende brief and asks this 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 a possible issue he considered in evaluating the merits of this appeal: Whether the court erred in denying the petition for resentencing.
In his supplemental brief, Booth contends his trial and appellate counsel have been ineffective. First, he argues trial counsel was ineffective for not raising section 1170.95 below. However, that statute did not exist until 15 years after his conviction. Further, this case arises from Booth's pro per petition invoking section 1170.95. The record demonstrates Booth was not convicted on a felony murder theory nor did his conviction arise from a natural and probable consequence theory of liability. Booth was the actual killer in this case.
He also argues counsels were ineffective for failure to raise Senate Bill No. 620 which authorizes trial courts to strike firearm enhancements. (Stats. 2017, ch. 682, § 2.) The measure was effective January 1, 2018, at least 11 years after Booth's convictions were final on appeal. In sum, none of Booth's current contentions raise any arguable issues for reversal on appeal.
We have reviewed the entire record as mandated by Wende and Anders. We have not discovered any arguable issue for reversal on appeal. Competent counsel has represented Booth on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. GUERRERO, J.