Opinion
E070967
11-13-2018
THE PEOPLE, Plaintiff and Respondent, v. ZURI S. K. YOUNG, Defendant and Appellant.
Robert F. Somers, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FCH02413) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
This is defendant and appellant Zuri S. K. Young's third appeal in this matter, attempting to recall his indeterminate 25-year-to-life sentence. Based on our independent review of the record, we find no error and affirm the order denying defendant's petition for recall of sentence.
II
PROCEDURAL BACKGROUND
The factual background of the underlying conviction is not relevant to this appeal.
In May 1998, a jury found defendant guilty of one count of battery by a prisoner on a non-confined person under Penal Code section 4501.5. After a subsequent bench trial, the trial court found true that defendant had suffered prior strike convictions for four counts of attempted murder under sections 664 and 187, and one count of robbery under section 211, all of which were violent or serious felonies under section 667, subdivisions (b) through (i). The trial court denied defendant's motion to strike his prior strike convictions, and sentenced defendant to a term of 25 years to life in state prison.
All future statutory references are to the Penal Code unless otherwise stated.
In his first appeal, defendant appealed from the trial court's denial of his petition for resentencing under section 1170.126, known as the Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)). (See People v. Young (Mar. 11, 2014, E059931) [nonpub. opn.] (Young I).) Finding defendant ineligible for resentencing under section 1170.126, subdivision (e)(3), due to defendant's four counts of attempted murder (§§ 664/187), this court affirmed the trial court's order denying defendant's petition for resentencing under section 1170.126. (See Young I, E059931, at pp. 3-4.)
On October 6, 2014, defendant filed a petition entitled "Recall of Commitment and Sentence Pursuant to CCR Title 5, 3076(c)(d) and Pen. Code § 1170(c)(d)." On November 25, 2014, the trial court ruled on defendant's petition as follows: "the Court has read and considered Petition for Recall of Sentence pursuant to PC 1170.126. The Court finds that Petitioner does not satisfy the criteria in PC 1170.126(e) and is not eligible. The petition for recall of sentence is denied."
On December 29, 2014, defendant filed a notice of appeal from the trial court's "[f]inding defendant ineligible as a matter of law for resentencing under PC 1170.126." In a nonpublished opinion (People v. Young (May 18, 2015, E062610) [nonpub. opn.] (Young II)), this court affirmed the trial court's November 25, 2014 order denying defendant's petition for recall of sentence.
On May 3, 2018, defendant filed another petition entitled "Petition for Recall of Sentence Pursuant to CCR Title # 15 § 3076(a)(1)(2)(3); P.C. § 1170(c)." Defendant, however, did not limit the petition to the above-noted authorities. Defendant petitioned for relief claiming that the 1998 court did not know he was serving his first term in prison; that no Three Strikes law existed when he pleaded to his prior offenses in 1993; that the 1993 offenses were not brought and tried separately; that he was entitled to relief under Propositions 36, 47, and 57; and that he had served time for 25 years and paid his restitution.
On June 22, 2018, in a written statement of decision, the trial court denied defendant's petition. The trial court noted that defendant was convicted in 1998 of one count of battery on a correctional officer (§ 4501.5) in case No. FCH02413, that defendant waived jury trial on his prior strike allegations, which the 1998 court found true, and that defendant was sentenced to 25 years to life in prison. The court also pointed out that defendant appealed from the judgment and sentence in that case and that defendant's conviction and sentence were affirmed on appeal. The court further stated that defendant had also "'filed' a number of 'Writs,' which were likewise denied." The court further stated that defendant's issues relating to the sufficiency of his prior strike allegations would have or should have been raised on appeal and that defendant could not relitigate the sufficiency of the evidence to support the court's true findings on the prior strike allegations at that time. The court also found defendant's claims of several "'changed circumstances'" as a basis for recall of sentence unmeritorious, explaining the court was aware of the alleged change in circumstances from the probation report considered by the court. The court also noted that "The fact that the prior convictions occurred prior to the passage of the 3 strikes law, and were a negotiated plea where all counts were brought in a single complaint does not affect the validity of application of the 3 strikes law to Defendant." The court concluded that defendant was ineligible for relief, noting the time to file a petition under Proposition 36 had expired; defendant was statutorily ineligible for relief under Proposition 47 due to the nature of the charges; and any consideration for conduct credits pursuant to Proposition 57 was "to be addressed by the Department of Corrections."
On July 12, 2018, defendant filed a notice of appeal with attached exhibits from the denial of his petition for recall of sentence, explaining the issues on appeal.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his 12-page supplemental brief with attached exhibits, defendant objects to appellate counsel filing a Wende brief, arguing, without supporting authority, the following: (1) a conflict of interest exists with his appellate counsel; (2) there is judicial conspiracy and campaign to cover up errors and ethical misconducts; (3) his 1993 record has been altered and tampered with; (4) appellate counsel made misstatements of facts; (5) the record shows that he had been convicted of only one prior strike conviction; (6) filing a Wende brief is an attempt to silence his First Amendment freedom of speech rights; (7) defendant has ineffective assistance of appellate counsel; (8) appellate counsel committed ethical misconduct by allowing another attorney to review his case, without a waiver of defendant's attorney-client privilege; (9) he did not waive his jury trial right on his prior conviction allegations; (10) he was entitled to a jury trial on his prior conviction allegations; and (11) the trial court twice erred in denying his petition for recall of his sentence citing contradictory case law. In light of these claims, defendant contends that this court should order an evidentiary hearing, review his documents in camera, and order appellate counsel to return his three-page "manifesto back to [him] in the same manner it was delivered to him."
We reject defendant's unsupported claims on appeal. Although not clearly articulated, several of defendant's claims appear to contest the true findings on his prior strike allegations or are an attempt to relitigate issues from his prior appeals. However, the true findings on his prior strike allegations are not at issue in this appeal, and defendant is estopped from relitigating issues resolved with finality in his prior appeals. This appeal is from the trial court's denial of defendant's petition for recall of his sentence under Propositions 36 and 47. Defendant is not eligible for modification of his sentence because his underlying offenses were serious and/or violent felonies. Section 1170.126, subdivision (e)(3), provides that a defendant is eligible for resentencing if he "has no prior convictions for any of the offenses appearing in" section 1170.12, subdivision (c)(2)(C). Among the "serious and/or violent felonies" that render a defendant ineligible for relief is attempted murder. (§ 1170.12, subd. (c)(2)(C)(iv)(IV) [homicide or attempted homicide].) The trial court found true that defendant had five prior serious or violent felony convictions, including attempted murder and robbery.
In addition, defendant is not eligible for relief under Proposition 47 due to the nature of his current conviction for battery on a non-prisoner by a prisoner (§ 4501.5) and his prior strike convictions for attempted murder (§§ 664/187). "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.)
Accordingly, the trial court did not err in denying defendant's petition for recall of his sentence.
We also reject defendant's remaining claims on appeal. There is nothing in the record to suggest that a conflict of interest existed when appellate counsel filed a Wende brief; that there was a judicial conspiracy and campaign to cover up errors and ethical misconducts; that his 1993 record had been altered and tampered with; that appellate counsel had misstated facts in his opening brief; that filing of a Wende brief is an attempt to silence his First Amendment freedom of speech rights; and that appellate counsel was ineffective for filing a Wende brief or that appellate counsel had committed ethical misconduct.
Furthermore, defendant's claims regarding ineffective assistance of appellate counsel and claims concerning judicial conspiracy or record tampering are not cognizable arguments on appeal. In order to show ineffective assistance of counsel, defendant must show that counsel's performance was deficient, falling below an objective standard of reasonableness, and that defendant was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) Defendant cannot show prejudice because, as explained, the trial court properly denied defendant's petition for recall of his sentence. Furthermore, counsel does not provide ineffective assistance merely by filing a brief pursuant to Wende. In People v. Serrano (2012) 211 Cal.App.4th 496, the appellate court recognized that the procedures for filing a brief stating the facts and case, but raising no arguable issue on appeal, set forth by the California Supreme Court in Wende, supra, 25 Cal.3d 436, and approved by the United States Supreme Court in Smith v. Robbins (2000) 528 U.S. 259, 276, satisfy a counsel's ethical duties to his client. (Serrano, at p. 500.) The mere fact that appellate counsel failed to raise an issue in the opening brief does not support defendant's ineffective assistance claim or claim of a violation of his First Amendment right. Defendant's claims that appellate counsel was ineffective or that the trial court and appellate counsel committed ethical misconduct are without merit, and we need not take any further action on them.
"Although a defense attorney has a duty to advance all colorable claims and defenses, the canons of professional ethics impose limits on permissible advocacy. It is the obligation of any lawyer—whether privately retained or publicly appointed—not to clog the courts with frivolous motions or appeals. [A defendant] has no legitimate complaint that his lawyer refused to do so." (Polk County v. Dodson (1981) 454 U.S. 312, 323.)
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant would result in reversal or modification of the judgment. (Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The order denying defendant's petition for recall of sentence is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.