Opinion
G059511
03-23-2021
THE PEOPLE, Plaintiff and Respondent, v. RUFUS RAYMOND SHAW, Defendant and Appellant.
Randall Conner, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB042005) OPINION Appeal from a postjudgment order of the Superior Court of San Bernardino County, Donna G. Garza, Judge. Affirmed. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Defendant Rufus Raymond Shaw appeals from the trial court's summary denial of his petition for resentencing (Petition) under Penal Code section 1170.95 (section 1170.95).
In 2006 a jury convicted Rufus Raymond Shaw and Anthony Maurice Cook, Jr., of two counts of deliberate and premeditated murder, and one count of willful, deliberate, and premeditated attempted murder. The jury also found true allegations both Cook and Shaw personally discharged a firearm (Pen. Code, § 12022.53, subd. (c)) and discharged a firearm and proximately caused great bodily injury (Pen. Code, § 12022.53, subd. (d)). The trial court sentenced both Shaw and Cook to a term of life with the possibility of parole for attempted murder, plus five consecutive terms of 25 years to life for murder and discharging a firearm. We affirmed the convictions on appeal. (People v. Shaw and Cook (May 28, 2009, G041439) [nonpub. opn.]; Shaw 1.)
In 2020, Shaw filed the Petition seeking resentencing. The trial court, who had also presided over the subject trial, summarily denied the Petition on the grounds Shaw was not eligible for relief under section 1170.95 as a matter of law. The court noted, among other things, the jury did not convict Shaw of felony murder or murder under a natural and probable consequences theory.
We appointed counsel to represent Shaw on appeal. Counsel filed a brief summarizing the proceedings and facts of the case and advised this court he found no arguable issues to assert on Shaw's behalf. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Counsel and this court notified Shaw he could file a supplemental brief on his own behalf. However, we received no supplemental brief from him and the time to file one has passed.
To assist us in our review, counsel suggested we consider: (1) whether the court erred by summarily denying the Petition without any further proceedings pursuant to section 1170.95, subdivision (c), to determine if Shaw is eligible for resentencing; and (2) whether Shaw was prejudiced by the court's asserted error.
DISCUSSION
We have independently reviewed the entire record as required under Anders v. California, supra, 386 U.S. 738 and People v. Wende, supra, 25 Cal.3d 436, and have found no arguable issues on appeal. Therefore, we affirm the postjudgment order.
Relief under section 1170.95 is available only to those "'convicted of felony murder or murder under a natural and probable consequence theory . . . .'" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) In People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review granted March 18, 2020, S260598, the court held (1) a trial court may rely on the record of conviction in determining whether the Shaw's petition makes a prima facie showing for relief under section 1170.95, and (2) the record of conviction includes the opinion of the Court of Appeal in the underlying conviction.
Our opinion in Shaw 1, recites a lengthy description of the evidence presented to the jury upon which it found beyond a reasonable doubt that Shaw and Cook were guilty of the deliberate and premeditated murder of murdered Odrum Nader Brooks and Demarcus T. Brooks, and the willful, deliberate, and premeditated attempted murder of Rydell Damarr Gipson. Plus, it is undisputed Shaw was not convicted of felony murder or murder under a natural and probable consequence theory.
Accordingly, we conclude the trial court correctly determined, based on the record of conviction in this case, Shaw was not eligible for relief under section 1170.95 as a matter of law. It follows the trial court did not err by summarily denying the Petition without conducting further proceedings pursuant to section 1170.95, subdivision (c), to determine if Shaw is eligible for resentencing. (People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review granted Mar. 18, 2020, S260493.) And, because the court did not err, Shaw was not prejudiced by the challenged order.
In sum, counsel's assessment there were no arguable issues to raise on appeal was manifestly correct. And nothing revealed by our own independent review of the record suggests otherwise.
DISPOSITION
The postjudgment order is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.