Opinion
G057764
10-18-2019
THE PEOPLE, Plaintiff and Respondent, v. MUTUA MONGO RUSHING, Defendant and Appellant.
Richard Power, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C-99778) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In 1995, a jury convicted appellant Mutua Rushing of second degree murder. In 2019, Rushing filed a petition for resentencing under Penal Code section 1170.95, alleging he was convicted "pursuant to the felony murder rule or the natural and probable consequences doctrine." (All further statutory references are to the Penal Code.) The trial court denied the petition on the grounds Rushing was the actual killer and a major participant who acted with reckless indifference to human life. Rushing appealed, and his appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738. Rushing also filed a supplemental brief raising numerous issues. Because our review of the record discloses no arguable issues, we affirm the postjudgment order denying Rushing's section 1170.95 petition.
I
FACTS AND PROCEDURAL HISTORY
The underlying facts were recounted in our opinion affirming Rushing's conviction for second degree murder. (See People v. Rushing (Feb. 27, 1997, G018421) [unpub. opn.].) After committing a bank robbery, Rushing drove away in a blue van. "Within five minutes, two separate police officers . . . heard a radio broadcast about the robbery with the description of the blue van driving southbound on the same street. They both attempted to follow the escaping robber, watching as he recklessly careened between lanes, drove at high, unsafe speeds and finally ran a red light. . . . Another police officer saw Rushing and turned on his red lights and siren. Rushing responded by turning against a red light and then proceeding at a high speed through a few more red lights before jerking into a left-hand turn pocket and striking a car waiting there. The car exploded on impact, killing the driver."
As noted, a jury convicted Rushing of second degree murder. After Senate Bill No. 1437 became effective, Rushing filed a petition for resentencing of his murder conviction under section 1170.95. The trial court denied Rushing's petition. After Rushing appealed, his appointed counsel filed a brief raising no issue, but asking this court to independently review the record on appeal. Rushing filed a supplemental brief.
II
DISCUSSION
Senate Bill No. 1437 (SB 1437), which became effective January 1, 2019, was enacted to "'amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.'" (People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez), quoting Stats. 2018, ch. 1015, § 1, subd. (f).) It added section 1170.95, which allows those "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 . . . ." (§ 1170.95, subd. (a).)
"An offender may file a petition under section 1170.95 where all three of the following 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[;] [¶] [and] (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)(1)-(3).)" (Martinez, supra, 31 Cal.App.5th at p. 723.) "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause." (§ 1170.95, subd. (c).)
Here, the trial court had valid reasons for denying Rushing's section 1170.95 petition. Rushing is not entitled to relief under SB 1437 because he was the actual killer and a major participant in the underlying felony who acted with reckless indifference to human life. The relevant statutory language does not extend the benefits of SB 1437 to offenders such as Rushing.
Rushing's supplemental brief does not address the propriety of the trial court's denial of the section 1170.95 petition based on those two grounds. Rushing argues there was insufficient evidence he had a culpable mental state. However, SB 1437 has no application to an actual killer. Whether there is a legal or factual basis for Rushing's second degree murder conviction is not reviewable in this appeal. Those issues should have been raised in his direct appeal.
Our review of the entire record, including the matters identified by counsel and Rushing, does not show the existence of an arguable issue. (Wende, supra, 25 Cal.3d at pp. 442-443.) Consequently, we affirm. (Wende, supra, 25 Cal.3d at p. 443.)
III
DISPOSITION
The postjudgment order is affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. GOETHALS, J.