Opinion
A157255
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. KENNETH A. ROGERS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-05-65933)
In July 2009, defendant and appellant Kenneth A. Rogers was convicted of conspiracy to commit murder (Pen. Code § 182) and attempted murder with deliberation and premeditation (§§ 664 & 187). Appellant was sentenced to prison for 25 years to life and the judgment was affirmed on appeal.
All undesignated statutory references are to the Penal Code.
In April 2019, appellant filed a petition for re-sentencing under section 1170.95. Section 1170.95, subdivision (a) provides in relevant part: "A person convicted of felony murder or murder under a natural and probable consequences theory may 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 when all of the following conditions apply: [¶] . . . The petitioner was convicted of first degree or second degree murder . . . ." In the April 2019 petition, appellant alleged he had been convicted of first or second degree murder under a theory of felony murder or natural and probable consequences, and could not now be convicted of those offenses due to changes in sections 188 and 189. The trial court summarily denied the petition on the ground that appellant was ineligible for relief because he "was not convicted of murder. Defendant was convicted of conspiracy to commit murder and attempted murder."
It was proper for the trial court to consider this court's prior opinion in determining whether appellant had made a prima facie showing of eligibility for relief under section 1170.95. (People v. Verdugo (2020) 44 Cal.App.5th 320, 333.) --------
Appellant filed a notice of appeal. Appellant's counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (See Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Appellate counsel advised appellant of his right to file a supplemental brief to bring to this court's attention any issue he believes deserves review. (See People v. Kelly (2006) 40 Cal.4th 106.) Appellant has not filed a supplemental brief.
By its plain language, section 1170.95 does not apply to convictions of conspiracy to commit murder or of attempted murder. (See People v. Medrano (2019) 42 Cal.App.5th 1001, 1018; People v. Larios (2019) 42 Cal.App5th 956, 970; People v. Munoz (2019) 39 Cal.App.5th 738, 753, review granted Nov. 26, 2019, S258234; see also People v. Lopez (2019) 38 Cal.App.5th 1087, 1103-1105, review granted Nov. 13, 2019, S258175.) Here, the jury found appellant guilty of conspiracy to commit murder and attempted murder. This verdict renders appellant ineligible for relief under section 1170.95. We have independently reviewed the record and we conclude there are no arguable issues on appeal.
DISPOSITION
The trial court's order is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.