Opinion
E079453
03-02-2023
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NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1302549 Samuel Diaz, Jr., Judge. Affirmed.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
FIELDS J.
INTRODUCTION
Defendant and appellant Amy Lou Daniel appeals from a postjudgment order denying her petition for resentencing pursuant to Penal Code former section 1170.95under the procedures established by Senate Bill No. 1437. Appointed appellate counsel filed an opening brief and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) We affirm.
All further statutory references will be to the Penal Code, unless otherwise noted.
This provision was renumbered without substantive change to section 1172.6, effective June 30, 2022. (See People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2.) For the sake of clarity and consistency with defendant's brief, we will refer to the provision as former section 1170.95.
PROCEDURAL BACKGROUND
In 2015, defendant and codefendant B.M. were charged by amended information with first degree murder (§ 187, subd. (a), count 1) and being a felon in possession of a firearm. (§ 29800, subd. (a)(1), counts 2 &3). As to count 1, the information alleged that defendant participated as a principal, knowing that another principal was armed with a firearm. (§ 12022, subd. (a)(1).) A jury convicted defendant of count 1 and count 3. As to count 1, the jury also found true the firearm enhancement. 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.
Defendant appealed her convictions, and this court affirmed the judgment. (People v. Matheis, et al. (June 8, 2017, E064177) [nonpub. opn.].)
On March 22, 2019, defendant filed, in propria persona, a petition for resentencing under former section 1170.95 to vacate her murder conviction, 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.
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, and the court dismissed the petition. This court subsequently affirmed the judgment. (People v. Daniel (August 10, 2020, E074685) [nonpub. opn.].)
On June 2, 2022, defendant filed a second in propria persona petition for resentencing under former section 1170.95 to vacate her murder conviction, again 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.
On July 15, 2022, the court held a hearing on the petition. The prosecutor informed the court that nothing regarding felony murder or the natural and probable consequences doctrine was given to the jury. Defense counsel concurred with the prosecutor and submitted. The court denied the petition.
DISCUSSION
After the notice of appeal was filed, this court appointed counsel to represent defendant. Counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, and identifying the following potential arguable issue: whether the trial court erred in relying on the prosecutor's representations regarding the jury instructions as a basis to dismiss defendant's petition for resentencing.
Defendant was offered an opportunity to file a personal supplemental brief, which she has not done. Although she has not filed a supplemental brief, we exercise our discretion to conduct an independent review of the record in the interest of justice. (People v. Delgadillo (2022) 14 Cal.5th 216, 230 ["[I]f the appellate court wishes, it may also exercise its discretion to conduct its own independent review of the record in the interest of justice."]; id at p. 232 ["[I]t is wholly within the court's discretion [to] conduct[] its own independent review of the record in any individual section 1172.6 appeal."] id. at p. 233, fn. 6 ["[T]he decision to conduct independent review is solely up to the discretion of the Courts of Appeal ...."].)
We have examined the entire record and found no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: MILLER Acting P. J. CODRINGTON J.