Opinion
A161679
06-29-2021
THE PEOPLE, Plaintiff and Respondent, v. WAYNE ARNOLD, Defendant and Appellant.
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VC45401
HUMES, P.J.
A jury convicted defendant Wayne Arnold of two counts of murder and two counts of robbery after he killed two liquor-store employees, Pritam Pannu and Ajid Gautum, in 1997. The jury also found true a felony-murder special circumstance and enhancements on each count for personally using a firearm. The trial court sentenced Arnold to life without the possibility of parole, and in 2000 this division affirmed the judgment with minor modifications not relevant to this appeal. (People v. Arnold (Mar. 13, 2000, A085230) [nonpub. opn.] (Arnold I).)
We use the spelling of Gautum's first name that appears in our record, although we are aware it was spelled differently in other sources.
The Legislature subsequently enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), which altered liability for murder under the theories of felony murder and natural and probable consequences. The bill also established a procedure, under newly enacted Penal Code section 1170.95, for eligible defendants to petition for recall and resentencing. In 2020, Arnold filed a petition for relief under the statute. After appointing counsel for him, the trial court denied the petition. It reasoned that he failed to make a prima facie showing of entitlement to relief because he was the actual killer, meaning he could still be convicted of felony murder after Senate Bill No. 1437's changes to the law. (See § 189, subd. (e).)
All further statutory references are to the Penal Code.
Arnold appealed, and his appellate counsel filed a brief asking this court to conduct an independent review of the record for arguable issues. Arnold was informed that he could file a supplemental brief but did not do so. We affirm.
I. Background
We begin by briefly summarizing the underlying facts set forth in Arnold I, which Arnold argued below could be relied on to adjudicate the petition. In September 1997, Arnold visited a Vallejo liquor store where the victims worked, and he testified at trial that Gautum was rude to him while he was inside. (Arnold I, supra, A085230.) Arnold returned to the store with an acquaintance, whom Gautum allegedly accused of panhandling. (Ibid.) A witness then overheard Arnold say that the store clerk had disrespected him and “that if he had a gun, he would shoot the clerk and take the cash register.” (Ibid.)
Several hours later, Gautum and Pannu were shot to death in the liquor store. (Arnold I, supra, A085230.) Right beforehand, another witness saw Arnold struggling with one of the clerks over a gun. (Ibid.)After the shootings, Arnold took the cash register from the store. (Ibid.)In his testimony, Arnold “admitted being at the scene, struggling with Gautum when the shots were fired, and taking the cash register after the shootings. He denied that he intended to rob the store when he entered, and maintained that Gautum had drawn the gun and [Arnold] was trying to defend himself. He testified that Gautum pulled the trigger during the struggle and fatally shot both himself and Pannu in the heart.” (Ibid.)
Arnold was convicted of two counts of first degree felony murder with the special circumstance that the murders were committed during a robbery. (Arnold I, supra, A085230.) He was also convicted of two counts of second degree robbery, and the jury found true as to all counts that he personally used a firearm. (Ibid.) The trial court sentenced Arnold “to life without parole for the murder of Pannu, plus four years for the firearm enhancement. Concurrent sentences included a second life sentence without parole for the murder of Gautum, plus four years for the enhancement, and two concurrent sentences of three years each for the robberies, plus two additional fouryear sentences for the firearm use.” (Ibid.) This court modified the judgment to stay the robbery sentences and award presentence custody credits. (Ibid.)
The murder convictions were under section 187, subdivision (a), and the special circumstance finding was under section 190.2, subdivision (a)(17). The robbery convictions were under section 211, and the firearm enhancements were found true under section 12022.5. (Arnold I, supra, A085230.)
Several years later, the Legislature enacted Senate Bill No. 1437. Effective January 1, 2019, the legislation “amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, ‘[m]alice shall not be imputed to a person based solely on his or her participation in a crime.' (§ 188, subd. (a)(3).)” (People v. Turner (2020) 45 Cal.App.5th 428, 433.) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless the defendant “was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).)
Senate Bill No. 1437 also enacted section 1170.95, which authorizes “[a] person convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts” so long as three conditions are met: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).) Any petition that fails to make “a prima facie showing that the petitioner falls within the provisions of [section 1170.95]” may be denied without an evidentiary hearing. (§ 1170.95, subds. (c) & (d).)
In September 2020, Arnold filed a petition under section 1170.95, averring that he was convicted at trial of felony murder or murder under a natural and probable consequences theory and could no longer be convicted of murder because of changes to the law made by Senate Bill No. 1437. He also requested that counsel be appointed, and the trial court appointed a public defender to represent him.
The following month, the prosecution filed a one-paragraph response to the petition, stating that Arnold failed to make a prima facie showing that he was eligible for resentencing because “he was the actual killer.” Arnold's counsel filed a reply that did not challenge the prosecution's position, stating merely that the trial court “should determine whether [Arnold] has made a prima facie showing of entitlement to relief.”
At a hearing on the petition in late November 2020, both parties submitted without argument. The trial court denied the petition for failure to make a prima facie showing of entitlement to relief, stating, “In reading the fact summary from the [Arnold I] opinion, it does appear clear that the defendant was the actual killer. And the jury did make the findings as well of the special circumstance in the commission of a robbery, so with that being said, the defendant being the actual killer-he also testified, described what might be viewed as a self-defense[-]type theory. There was no indication anyone else was the killer or aided [and] abetted in any way.”
The Supreme Court has granted review to determine whether a special circumstance finding under section 190.2, subdivision (a)(17), that, like the one here, was made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 precludes a defendant from making a prima facie showing of eligibility for relief under section 1170.95. (People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review granted Mar. 10, 2021, S266606.) We express no opinion on this issue, as we conclude the trial court correctly determined that Arnold failed to make a prima facie showing that he was not the actual killer.
II. Discussion
A defendant appealing from the denial of a section 1170.95 petition is not entitled to an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). Rather, as numerous “federal and California opinions have repeatedly and consistently held[, ]... an appellate court's obligation to conduct an independent review of the record only applies when appointed counsel raises no arguable issues in a criminal defendant's first appeal as a matter of right.” (People v. Flores (2020) 54 Cal.App.5th 266, 271.)
Accordingly, instead of seeking Wende review, Arnold's appellate counsel contended that this court “should” independently review the record for arguable issues under Flores. Flores determined that, in the interests of justice, “an appellate 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.” (People v. Flores, supra, 54 Cal.App.5th at pp. 273-274; accord People v. Gallo (2020) 57 Cal.App.5th 594, 599.) Other decisions, however, have declined to conduct an independent review as a matter of course. Rather, they have concluded that if counsel files a no-issues brief, the better procedure is to provide an opportunity to file a supplemental brief and, if the defendant does not do so, dismiss the appeal as abandoned without conducting an independent review. (People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review granted Oct. 14, 2020, S264278; accord People v. Figueras 61 Cal.App.5th 108, 112, review granted May 12, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1129-1130, review granted Mar. 17, 2021, S266853.)
In this case, we elect to conduct an independent review of the record, as it poses little additional burden to do so. (Cf. People v. Scott, supra, 58 Cal.App.5th at pp. 1133-1135.) The facts recited in Arnold I establish that Arnold was the actual killer, meaning he is not entitled to relief as a matter of law. Arnold, who was represented by counsel below, did not object to the trial court's reliance on those facts or ever suggest that he could “further develop[] the record to demonstrate potential entitlement to relief.” (People v. Cooper (2020) 54 Cal.App.5th 106, 126, review granted Nov. 10, 2020, S264684.) To the contrary, Arnold's reply brief below “[took] its statement of facts from the appellate opinion in this case” and expressly argued that it was appropriate to consult such an opinion in ruling on a section 1170.95 petition. Indeed, Arnold did not even argue that his petition should be granted. Under these circumstances, we conclude that no arguable issues exist.
III. Disposition
The November 30, 2020 order denying Arnold's section 1170.95 petition is affirmed.
WE CONCUR: Margulies, J., Banke, J.