Opinion
D081283
09-27-2023
THE PEOPLE, Plaintiff and Respondent, v. ERIC WILTON BURTON, Defendant and Appellant.
Eric Wilton Burton, in pro. per.; and Russell S. Babcock, 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NOT TO BE PUBLISHED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 San Diego County No. SCE238643, Laura W. Halgren, Judge.
Eric Wilton Burton, in pro. per.; and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
HUFFMAN, Acting P. J.
In 2005, a jury convicted Eric Wilton Burton of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664 &187), discharge of a firearm from a motor vehicle (§ 12034, subd. (c)) and assault with a semiautomatic firearm (§ 245, subd. (b)). The jury also found Burton personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)); that he was armed with a firearm (§ 12022.5, subd. (a)); and that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)).
All further statutory references are to the Penal Code.
The court sentenced Burton to life with parole plus a consecutive term of 25 years to life in prison for the 12022.53, subdivision (d) enhancement.
In 2022, Burton filed a pro. per. petition for resentencing under section 1172.6. The court appointed defense counsel, received briefing from the parties, reviewed the record of conviction, and held a hearing. The court determined Burton was the actual perpetrator of the offense. His conviction for willful, deliberate and premeditated attempted murder and the finding Burton personally and intentionally discharged a firearm causing great bodily injury, demonstrate Burton was the shooter who attempted to murder the victim. The court found Burton was not eligible for relief under section 1172.6. The court denied the petition without issuing an order to show cause.
At the hearing Burton filed an untimely challenge for Judge Halgren, who had been the original trial judge in the case. The challenge was denied. When the judge declined to recuse herself, Burton walked out of the video hearing. The hearing was completed in his absence.
Burton filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to the procedure established in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), indicating counsel has not been able to identify any potentially meritorious issues for reversal on appeal. Counsel asks the court to exercise our discretion to independently review the record for error in the same manner we would do in a case controlled by People v. Wende (1979) 25 Cal.3d 436 (Wende). We advised Burton he could file his own brief on appeal. He has responded with a lengthy, rambling set of materials which purport to address issues affecting the original trial court judgment, the length of his sentence, as well as some comments regarding the matter now before this court on appeal, i.e., whether the trial court erred in denying Burton's petition for resentencing without first issuing an order to show cause. We will discuss Burton's submissions below.
The facts of the underlying offense are not necessary to the resolution of this appeal. We will not include a statement of facts in this opinion.
DISCUSSION
As we have noted appellate counsel has filed a brief pursuant to Delgadillo and asks the court to independently review the record for error. To assist the court in its review of the record, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that were considered in evaluating the potential merits of this appeal:
1. Did the trial court err in denying Burton's peremptory challenge to the judge?
2. Did the court err in denying Burton's challenge of the judge for cause?
3. Do recent California appellate opinions provide Burton with a basis for relief?
4. Did the court err in continuing with the hearing on the petition after Burton voluntary left the hearing?
We have reviewed Burton's written materials. Whatever Burton's concerns may be about the trial and the judgment that followed, those proceedings are not before us. Accordingly, we will not evaluate Burton's complaints about his trial or the sentence imposed. Nor will we attempt to evaluate his claim that the weapon used in the crime was seized as a result of an unlawful search in 2004. His argument that the firearm enhancement should be dismissed is without merit. The original judgment has long been final.
As to the present appeal, Burton does not deny he was the shooter, rather, he claims being the actual perpetrator should not prevent him from being resentenced under section 1172.6. He is mistaken. The statute does not provide relief for actual killers or who are the actors who attempted to kill another person.
Burton offers no meritorious reasons the court should have granted a late peremptory challenge to the trial judge or for a challenge for cause made at the last minute. Burton walked away from the hearing when he did not get his way on the effort to remove the trial judge. He cannot now complain he was absent from part of the hearing.
We do not find any potentially meritorious issues for reversal on appeal in the voluminous materials Burton has submitted. Nor has our independent review of the record identified any potentially meritorious issues. Competent counsel has represented Burton on this appeal.
DISPOSITION
The order denying Burton's petition for resentencing under section 1172.6 is affirmed.
WE CONCUR: IRION, J., CASTILLO, J.