Opinion
B322108
02-14-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY GRANT, Defendant and Appellant.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA428350. Eleanor J. Hunter, Judge. Affirmed.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
VIRAMONTES, J.
Defendant and Appellant Anthony Grant (Grant) appeals from the denial of his petition for resentencing pursuant to Penal Code section 1172.6. We affirm.
All further statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) In this opinion we use the new code section for clarity purposes.
FACTUAL AND PROCEDURAL BACKGROUND
We draw the underlying facts from Grant's direct appeal. (See People v. Grant (Jul. 19, 2016, B264820) [nonpub. opn.].)
In 2014, Grant was a member of the Hoovers street gang. Grant and a fellow gang member got into a fight. Shortly afterwards, the fellow gang member was found dead, having been shot multiple times. The People filed an information charging Grant with murder (§ 187, subd. (a)), with an allegation that he personally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). Further, the information alleged that Grant committed the murder for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).)
At the jury trial, Grant's defense counsel argued that Grant acted in self-defense. The case was submitted to the jury with instructions on first degree premeditated murder, second degree murder, and voluntary manslaughter based on "imperfect self-defense" and self-defense. The jury returned a verdict finding Grant guilty of first degree murder, with a finding that he personally discharged a firearm causing great bodily injury and death. The jury also found Grant had committed the murder for the benefit of a criminal street gang. The court imposed a sentence of 80 years, composed of an indeterminate term of 25 years to life for the murder, doubled for a prior strike, plus a consecutive indeterminate term of 25 years to life for a firearm enhancement, plus a consecutive five-year term for a prior serious felony conviction.
Grant appealed. We reversed the gang enhancement, but otherwise affirmed the judgment.
In March 2022, Grant filed a petition for resentencing under former section 1170.95 (now § 1172.6). On his form petition, Grant stated that he was convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine. The trial court appointed counsel for Grant. In their brief in opposition, the People argued that Grant had not established a prima face case for relief because the jury was not instructed on the natural and probable consequences doctrine nor the felony murder rule, the theory of culpability was direct liability, and Grant was not convicted under a felony murder or natural and probable consequences theory of liability.
The trial court held a hearing in June 2022. Citing the jury instructions and verdict, the trial court denied the petition. The trial court reviewed the record of conviction and found that Grant had failed to establish a prima facie case that he was eligible for resentencing. The trial court found that there were no jury instructions on the natural and probable consequences doctrine nor "any theory of imputed malice" with regards to Grant. The court also found Grant "was the actual shooter in this case, and that could be found in the jury verdicts."
Grant timely appealed the denial of his resentencing petition.
We appointed appellate counsel to represent Grant. Grant's counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised. The brief included a declaration by counsel that he reviewed the record and sent a letter to defendant explaining his evaluation of the record. Counsel further declared that he informed Grant that this court may allow him to file a supplemental brief and provided him with the transcripts in this matter.
In November 2022, we sent a letter to Grant advising him of his right to file a supplemental brief within 30 days of the date of the letter. Grant did not file a supplemental brief.
DISCUSSION
Counsel has requested that we exercise our discretion to independently review the record for error, citing People v. Flores (2020) 54 Cal.App.5th 266, 274 ["although it is not required under law, we think an appellant court can and should independently review the record on appeal when an indigent defendant's appointed counsel has filed a Wende brief in a postjudgment appeal from a summary denial of a section 1170.95 petition (regardless of whether the petitioner has filed a supplemental brief)"]. Other courts have determined that where, as here, the defendant does not file a supplemental brief, the Court of Appeal need not undertake Wende review but instead may dismiss the appeal as abandoned. (See, e.g., People v. Cole (2020) 52 Cal.App.5th 1023, 1039; see also People v. Serrano (2012) 211 Cal.App.4th 496, 501 [a defendant who is appealing from a postjudgment denial of a motion to vacate "has no constitutional right to counsel," so he is not entitled to Wende review when appointed counsel finds no arguable issues].) This issue is now before the Supreme Court in People v. Delgadillo (Nov. 18, 2020, B304441), review granted Feb. 17, 2021, S266305. Pending guidance from the Supreme Court, we exercise our discretion to independently review Grant's appeal.
We have examined the entire record of proceedings submitted to this court and are satisfied that Grant's appointed counsel fully complied with his responsibilities and no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende, supra, 25 Cal.3d at p. 441.) The record establishes that the People did not proceed and Grant was not convicted under a theory of felony murder, murder under the natural and probable consequences doctrine, or any other theory of imputed malice based on participation in a crime. Accordingly, section 1172.6 is inapplicable and Grant is not eligible for relief under this statute as a matter of law. (See § 1172.6, subd. (a).)
DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
We concur: GRIMES, Acting P. J., WILEY, J.