Opinion
C099133
03-27-2024
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN RENEE JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 19FE020421)
Ashworth, J. [*]
Appointed counsel for defendant Stephen Renee Jackson has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant submitted a supplemental brief arguing his attorney provided ineffective assistance of counsel during his original trial. He also argues the law now allows the court to reduce his offense to a lesser related or included crime. In addition, he attached a petition for habeas corpus he filed in the trial court raising allegations of ineffective assistance of trial counsel and violations of the California Racial Justice Act of 2020. Having reviewed the record and defendant's supplemental brief, we find no arguable error that would result in a disposition more favorable to defendant. We affirm the judgment.
BACKGROUND
The information charged defendant with murder. (Pen. Code, § 187.)
Undesignated statutory references are to the Penal Code.
Defendant and C.T. were a couple for 15 years and have two children. C.T. worked with the victim Jai-Tu Keys and they became lovers while defendant and C.T. were still involved. (People v. Jackson (Apr. 5, 2023, C095988) [nonpub. opn.].)
On defendant's motion for judicial notice, we incorporated by reference case No. C095988.
In 2016, C.T. left defendant while continuing her relationship with Keys. Defendant and Keys were not on good terms. In 2017, the two got into an altercation at a store where they called each other names, Keys bit defendant and defendant claimed to have stabbed Keys. (People v. Jackson, supra, C095988.)
The night of the murder, C.T. and defendant went to watch their child's football game. Afterwards, C.T. left defendant to go see Keys. (People v. Jackson, supra, C095988.)
Defendant tracked down C.T. in her car, approached and asked for his cell phone, which he had intentionally left in the trunk of the car. C.T. testified no words were exchanged and defendant smashed the front passenger window and reached into the car. Keys told C.T. to drive. While C.T. drove away, defendant either ran alongside the car or hung onto it, but eventually let go. Keys looked at C.T and said, "He got me." (People v. Jackson, supra, C095988.)
In his defense, defendant testified that when he approached the car, Keys told C.T. to run defendant over, so defendant ran to the sidewalk to avoid being hit. Next, Keys rolled down the window and spat on defendant. Defendant claimed Keys reached for his waist and said, "do you want some of this?" In response, defendant said he swung and broke the car window. Keys grabbed defendant by the collar and dragged him down the street as C.T. drove away. Defendant became afraid and swung at the window but did not intend to stab Keys. (People v. Jackson, supra, C095988.)
Keys later died of a single stab wound to his heart. (People v. Jackson, supra, C095988.)
Defendant asserted Keys called him names and threatened him several times over the course of the prior years. (People v. Jackson, supra, C095988.)
The jury convicted defendant of murder. The trial court sentenced defendant to 25 years to life in April 2022. Defendant appealed and another panel of this court affirmed his conviction in April 2023. (People v. Jackson, supra, C095988.)
In June 2023, defendant filed a petition under section 1170.91 asserting he was a member of the military and may be suffering from trauma or other mental health problems as a result of his service.
The trial court summarily denied his petition, stating, "Because defendant was sentenced to an indeterminate term, he is not eligible for resentencing under section 1170.91 because the statute only applies to determinate terms imposed under Penal Code section 1170[, subdivision] (b). (People v. Estrada (2020) 58 Cal.App. 5th 839.)"
Defendant filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the procedural history of the case and requests this court review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at p. 436.) Defendant filed a supplemental brief.
A. Scope of Review
In Wende, our Supreme Court held that "Courts of Appeal must conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal which raises no specific issues or describes the appeal as frivolous." (People v. Delgadillo (2022) 14 Cal.5th 216, 221 (Delgadillo).) The Wende procedure applies "to the first appeal as of right and is compelled by the constitutional right to counsel under the Fourteenth Amendment of the United States Constitution." (Ibid., italics added.)
In Delgadillo, our Supreme Court held Wende independent review is not constitutionally required in an appeal from a postconviction order denying a postjudgment section 1172.6 petition for resentencing because the denial does not implicate a defendant's constitutional right to counsel in a first appeal as of right. (Delgadillo, supra, 14 Cal.5th at pp. 222, 224-225.) The court further found that general due process principles regarding fundamental fairness did not compel a Wende independent review of the order. (Delgadillo, at pp. 229-232.) Nevertheless, in the interest of judicial economy, the court exercised its discretion to conduct its own independent review of the record given that the lower court's "suboptimal" notice to defendant referenced Wende but did not indicate that his appeal might be dismissed as abandoned if he did not file a supplemental brief. (Delgadillo, at pp. 222, 233.)
The Delgadillo court also prescribed guidance for considering an appeal from an order denying a section 1172.6 petition where counsel finds no arguable issues to be pursued on appeal. (Delgadillo, supra, 14 Cal.5th at p. 232.) When a defendant has been notified that his appeal of the postconviction order may be dismissed, the reviewing court must evaluate the specific arguments presented in any supplemental brief the defendant files. (Ibid.) The filing of a supplemental brief, however, "does not compel an independent review of the entire record to identify unraised issues," although the reviewing court may exercise its discretion to independently review the record. (Ibid.)
While Delgadillo addressed the application of Wende's review procedures in the specific context of a postconviction relief order under section 1172.6 (Delgadillo, supra, 14 Cal.5th at p. 231, fn. 5), these same principles apply in this case in which defendant sought postjudgment relief under section 1170.91. Because defendant filed a supplemental brief raising several issues and this court did not advise him that his case may be dismissed if he did not file a supplemental brief, we shall apply Delgadillo's guidance and consider the issues he raised on appeal and exercise our discretion to conduct an independent review of the record.
B. Supplemental Briefing
Defendant's first argument-and the only one cognizable in this appeal-is that effective January 1, 2023, the trial court could reduce his conviction to a lesser related or lesser included offense. While the statute gave that power to the trial court for eligible defendants, defendant is not eligible.
While not specified in his brief, defendant's reference must be to section 1170.91, subdivision (b)(3), given his citation to the effective date of January 2023 and the language in his brief. That provision requires a court to consider as a mitigating factor in sentencing the fact "a member of the United States military who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the defendant's military service." (§ 1170.91, subd (a).) It also allows the defendant to submit a petition to recall the defendant's sentence on this basis and allows the trial court to reduce defendant's term of imprisonment or vacate his conviction and impose judgment on any necessarily included lesser offense or lesser related offense and resentence defendant. (§ 1170.91, subd. (b)(3))
But subdivision (c) of section 1170.91 states, "This section does not apply to a person convicted of, or having one or more prior convictions for, an offense specified in" section 667, subdivision (e)(2)(C)(iv). That provision, in turn, includes, "[a]ny homicide offense . . . defined in [section] 187" which is precisely defendant's conviction. (§ 667, subd. (e)(2)(C)(iv)(IV).) Thus, defendant is ineligible for relief under this section. Defendant's supplemental brief concedes the trial court "was correct that the new law did not apply to [his] offense, but for the wrong reason." It is axiomatic that we evaluate the trial court's decision which here was correct, not its reasoning. (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 368.)
In his supplemental briefing, defendant asserts his trial counsel provided ineffective assistance of counsel during his initial trial. He also attached his pending superior court petition for habeas corpus raising the issues of ineffective assistance of counsel and possible violations of the California Racial Justice Act of 2020. These claims are not cognizable in this appeal.
As to his allegation that his counsel was ineffective during his original trial, the "appropriate means of raising a claim of ineffective assistance of counsel is either by direct appeal or by petition for a writ of habeas corpus." (People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.)
This postjudgment appeal fits neither of those categories and this issue is not properly before us.
As to his currently pending habeas petition, that matter is not part of the instant appeal and thus is not properly before us. Nothing in the record suggests the trial court has ruled on that petition. Further, "in noncapital cases, if the superior court denies a petition for a writ of habeas corpus, the petitioner has no statutory right to appeal. Instead, the petitioner must file a new, original petition, generally in the Court of Appeal." (Robinson v. Lewis (2020) 9 Cal.5th 883, 895.)
Having undertaken an examination of the entire record of his resentencing petition pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. Accordingly, we will affirm the judgment.
DISPOSITION
The postjudgment order is affirmed.
We concur: Krause, Acting P. J., Boulware Eurie, J.
[*] Judge of the El Dorado County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.