Opinion
E074685
08-10-2020
THE PEOPLE, Plaintiff and Respondent, v. AMY LOU DANIEL, Defendant and Appellant.
Randall Conner, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1302549) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed with directions. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted defendant and appellant Amy Lou Daniel of first degree murder (Pen. Code, § 187, subd. (a), count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1), count 3). As to count 1, the jury also found that she participated as a principal, knowing that another principal was armed with a firearm. (§ 12022, subd. (a)(1).) A trial court sentenced defendant to 25 years to life on count 1, a consecutive one year on the firearm enhancement, and a concurrent three years on count 3.
All further statutory references will be to the Penal Code, unless otherwise indicated.
Count 2 involved codefendant Brian Matheis (B.M.).
Defendant appeals from a postjudgment order dismissing her petition for resentencing pursuant to section 1170.95 and Senate Bill No. 1437 (2017-1018 Reg. Sess.). Based on our independent review of the record, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The brief factual summary is taken from this court's unpublished opinion in defendant's prior appeal. (People v. Matheis et al. (June 8, 2017, E064177) [nonpub. opn.].)
Defendant worked with J.F. (the victim), and their daughters were friends. Defendant's daughter spent the night at the victim's house, and, afterward, defendant and her boyfriend, B.M., believed the victim molested her. Consequently, they made a plan to kill him. Defendant called the victim and asked for a ride to the store. The victim came to her house. Defendant wanted to go with B.M. and the victim, but B.M. would not let her. B.M. went with the victim in his car. As the victim was driving, B.M. shot him in the head. The car crashed into a fence, and B.M. left the scene. He avoided defendant for a few days, and then the two of them went out of state. At some point, defendant had a small handgun, wrapped in a bandanna. She took the gun, walked into some bushes, and came out a minute or so later without the gun.
On June 8, 2015, a jury found defendant guilty of first degree murder (§ 187, subd. (a), count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1), count 3). As to count 1, the jury also found that defendant participated as a principal, knowing that another principal was armed with a firearm. (§ 12022, subd. (a)(1).)
On August 7, 2015, the court sentenced defendant to 25 years to life on count 1, plus one year on the firearm enhancement, and a concurrent three years on count 3. The court subsequently received a letter from the state prison saying that the abstract of judgment erroneously showed the one-year firearm enhancement (§ 12022, subd. (a)(1)) was run concurrent. On January 7, 2019, the court confirmed that the total aggregate sentence was 25 years to life, plus one year. Thus, it ordered the abstract of judgment to be corrected to show the firearm enhancement was to run consecutive to the sentence in count 1.
Defendant appealed her convictions, and this court affirmed the judgment. (People v. Matheis et al., supra, E064177.)
On September 30, 2018, the Governor signed Senate Bill No. 1437, which became effective on January 1, 2019. "Senate Bill 1437 was enacted to 'amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' " (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Senate Bill No. 1437 added section 1170.95, "which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions." (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417.)
On March 22, 2019, defendant filed a petition pursuant to section 1170.95, in propria persona, claiming she was convicted of murder under the felony-murder rule or the natural and probable consequences doctrine, and she could not now be convicted of murder because of changes made to sections 188 and 189. She also requested the appointment of counsel.
On April 24, 2019, the People filed a motion to dismiss defendant's petition, arguing that Senate Bill No. 1437 was unconstitutional; moreover, even if it was constitutional, defendant had not and could not demonstrate she was entitled to relief, since she directly aided and abetted the murder with an intent to kill and was a major participant in the underlying crime who acted with reckless indifference to life. The People asserted that defendant not only helped plan the murder, but she lured the victim over to her home so her boyfriend could shoot him. In support, the People attached this court's unpublished opinion from defendant's prior appeal. (People v. Matheis et al., supra, E064177.)
The court held a hearing on the petition on January 31, 2020. The prosecutor moved to dismiss the petition, citing the facts from our prior unpublished opinion stating that defendant and her codefendant believed the victim had molested her daughter and planned to kill him; thus, the prosecutor asserted "there was at least intent to kill." The court asked if jury instructions were given on felony murder or the natural and probable consequences doctrine. The prosecutor said he was not able to find the instructions, but stated that this was a premeditated killing. Defense counsel submitted. The court dismissed the petition.
Defendant filed a notice of appeal, appealing the dismissal of her section 1170.95 petition without a hearing. We affirm.
DISCUSSION
Defendant appealed and, upon her request, this court appointed counsel to represent her. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and identifying one potential arguable issue: whether the court erred by relying on the prosecutor's representations regarding this court's prior opinion as a basis to dismiss the petition. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which she has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
Although not raised by the parties, we note an apparent clerical error. Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) Clerical error can be made by a clerk, by counsel, or by the court itself. (Ibid.) Appellate courts have authority to order the correction of abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
On January 7, 2019, the court ordered the abstract of judgment to be corrected to show the one-year term on the firearm enhancement (§ 12022, subd. (a)(1)) was to run consecutive to the sentence in count 1; thus, the total aggregate term was 25 years to life, plus one year. We observe the amended abstract that was filed was an indeterminate abstract, and it lists the firearm enhancement with one year imposed. However, a one-year prison sentence under section 12022, subdivision (a)(1), is a determinate term because it is set for a fixed time period. (See In re Maes (2010) 185 Cal.App.4th 1094, 1099-1100 [discussing attaching determinate enhancement sentences to indeterminate felony sentences.].) Therefore, it should be listed on the determinate abstract, not the indeterminate abstract. In the interest of accuracy, we direct the superior court clerk to correct the abstracts of judgment. The indeterminate abstract should be corrected to delete the one-year firearm enhancement under section 12022, subdivision (a)(1). The determinate abstract should be corrected to add the section 12022, subdivision (a)(1) firearm enhancement.
DISPOSITION
The superior court clerk is directed to correct the abstracts of judgment as follows: The indeterminate abstract should be corrected to delete the one-year firearm enhancement under section 12022, subdivision (a)(1). The determinate abstract should be corrected to add the section 12022, subdivision (a)(1) firearm enhancement and adjust the total time in the number 8 box to reflect one year.
The clerk is directed to forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. CODRINGTON
J.