Opinion
B325673
10-31-2023
THE PEOPLE, Plaintiff and Respondent, v. QUINTON SMITH, Defendant and Appellant.
Quinton Smith, in pro. per.; James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA478793, Mark S. Arnold, Judge. Affirmed.
Quinton Smith, in pro. per.; James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EGERTON, J.
Quinton Smith appeals from the superior court's order denying his petition for resentencing under Penal Code section 1172.6. His appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and Smith filed a supplemental brief. We have independently reviewed the contentions Smith raises in his supplemental brief and conclude none of them has merit. We affirm.
References to statutes are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
BACKGROUND
On October 7, 2020, the People filed a seven-count information against Smith. The information charged Smith with the murder of Felicia Page, the attempted murder of K.H. and C.R., shooting at an occupied motor vehicle, assault with a semiautomatic firearm on M.L. and J.V., and possession of a firearm by a felon. In the murder count, the information alleged Smith personally used and personally and intentionally discharged a firearm causing Page's death. The information also alleged Smith personally used and personally and intentionally discharged a firearm in the attempted murder, shooting at an occupied motor vehicle, and assault counts. As to all seven counts, the People alleged the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang.
On October 25, 2021, Smith entered into a plea agreement with the prosecution. The prosecution added an eighth count to the information for voluntary manslaughter. The prosecution also added an allegation under section 12022.5, subdivision (a), that, in the commission of that crime, Smith personally used a firearm. Smith pleaded no contest to the charge and admitted the personal use of a firearm allegation. Smith's counsel stipulated to "a factual basis based on the arrest reports and prelim transcripts." In accordance with the plea agreement, the trial court sentenced Smith to 15 years in the state prison, calculated as the upper term of 11 years for manslaughter plus the midterm of four years for the firearm enhancement. On the prosecution's motion, the court dismissed all remaining counts and enhancements.
At the time of the plea, Smith already had had a preliminary hearing. Neither the transcript of the preliminary hearing nor the "arrest reports" are contained in the record on appeal. In his brief here, appellate counsel takes his statement of facts from the probation officer's report. Counsel's brief states, "[S]hots were fired from a white, 2019 Kia Sorento near the intersection of Hoover and Gage, resulting in the death of one victim, a gunshot injury to a second victim and damage to a vehicle. Based on an investigation conducted by the Los Angeles Police Department, it was determined that the Kia Sorento was a rental vehicle and that appellant was the person who had rented it. One witness positively identified the appellant as the driver of the suspect vehicle."
On June 10, 2022, Smith filed a petition for resentencing under section 1172.6. On a preprinted form, Smith checked boxes stating an information had been filed against him "that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime"; and he "was convicted of . . . manslaughter following a trial or [he] accepted a plea offer in lieu of a trial." Smith also checked a box that said, "Having presented a facially sufficient petition, I request that this Court appoint counsel to represent me."
In addition, Smith checked a box that read, "I could not presently be convicted of murder or attempted murder [sic] because of changes made to Penal Code §§ 188 and 189."
The trial court reappointed the same defense attorney who had represented Smith in his case and plea agreement. On July 25, 2022, Smith appeared with counsel before the court.A deputy district attorney also was present. The court noted the abstract of judgment reflected a true finding that the defendant had "personally used a firearm." Defense counsel replied, "I didn't file this petition, I believe my client did. And I looked at the declaration when he filed it" (presumably referring to the check-the-boxes form). Defense counsel then said he submitted the matter.
The reporter's transcript states, "The defendant is present in court with counsel." However, the minute order states, "Defendant is not present in court, but represented by Kris Finley Alternate Public Defender." "Conflicts between the reporter's and clerk's transcripts are generally presumed to be clerical in nature and are resolved in favor of the reporter's transcript unless the particular circumstances dictate otherwise." (In re Merrick V. (2004) 122 Cal.App.4th 235, 249, citing People v. Smith (1983) 33 Cal.3d 596, 599.)
The court stated it believed that "personal use of a firearm . . . disqualifies a person from relief under Penal Code section 117[2.6]." The court concluded, "So the petition is dismissed."
Smith appealed and we appointed counsel to represent him on appeal. After examining "the entire record," counsel filed an opening brief stating he had "found no arguable issues to raise on appeal from the denial of appellant's Penal Code section 1172.6 petition for resentencing." Counsel asked us to "follow the procedures outlined" in Delgadillo. Counsel stated he had sent Smith a copy of the brief as well as transcripts of the record on appeal and advised him of his right to file a supplemental brief.
Smith requested two extensions of time to file his supplemental brief. We granted both. Smith filed a supplemental brief on July 26, 2023.
Smith does not identify any error in the trial court's denial of his petition for resentencing. Instead, Smith raises several arguments that have nothing to do with section 1172.6. First, he contends we should remand the matter for the trial court to consider whether to impose the midterm under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567). Second, he asserts the use of a firearm was" 'an element of [the] offense'" of voluntary manslaughter and therefore his sentence violated the "prohibit[ion of] multiple convictions based on necessarily included offenses." Although difficult to make out, it appears Smith also argues the court erred in "us[ing] the same elements of the crime in count 8 as an enhancement, 'and to aggravate' the base term on count 8 and impose an upper term 11 year sentence, along with a four-year sentence for a gun enhancement." In another heading, Smith says he "raises a Sixth Amendment challenge to the imposition of an upper term sentence based on facts found by a trial judge." Finally, Smith argues, "[a]ppellate counsel was deficient in his failure to challenge multiple convictions based on necessarily included offenses and to multiple punishment for a single act or an indivisible course of conduct."
DISCUSSION
Senate Bill No. 1437 took effect on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) It limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder to ensure a person's sentence is commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842-843; People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis).) The Legislature then passed Senate Bill No. 775 (2020-2021 Reg. Sess.) to expand relief to people convicted of (as relevant here) manslaughter. The bill also eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person's participation in a crime.
Individuals convicted of murder or manslaughter under a now-invalid theory may petition to vacate their convictions and be resentenced. (§ 1172.6, subd. (a).) If the petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold an evidentiary hearing. At the hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty of (in this case) manslaughter under the amended law. (§ 1172.6, subds. (c), (d)(3).)
"The record of conviction will necessarily inform the trial court's prima facie inquiry under section 117[2.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.)
In December 2022, our Supreme Court decided Delgadillo, supra, 14 Cal.5th 216. Under Delgadillo, if a no-issues brief is filed in a section 1172.6 appeal and the defendant then "files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Delgadillo, at pp. 231-232.) We are not required to conduct "an independent review of the entire record to identify unraised issues." (Id. at p. 232.)
As noted, Smith has raised no claims of error in the trial court's rejection of his petition. Although we are not required to consider "unraised issues," we conclude the court did not err. At no time-when he pleaded no contest, in his section 1172.6 petition, in the trial court, or here on appeal-has Smith even suggested, much less demonstrated, that he was merely an accomplice and someone else committed the shootings. A person who was the actual killer is ineligible for resentencing. (People v. Garrison (2021) 73 Cal.App.5th 735, 738, 743-744, 747 (Garrison).)
Although the trial court said the petition was "dismissed," we assume the court misspoke and meant to say the petition was denied. We construe the court's order as having denied, rather than dismissed, Smith's petition.
The trial court stated it believed "personal use of a firearm" "disqualifies a person from relief under Penal Code section 117[2.6]." Whether or not the court was right about this (compare Garrison, supra, 73 Cal.App.5th at pp. 739, 743-744 [defendant pleaded guilty to murder and admitted use of a firearm under section 12022.5, subdivision (a); while finding of personal firearm use doesn't prove defendant was actual killer, record showed the only" 'use'" of a firearm was to kill victim] with People v. Offley (2020) 48 Cal.App.5th 588 [true finding on section 12022.53, subdivisions (d) and (e)(1) firearm enhancement did not in itself preclude relief]), here, Smith is ineligible for resentencing as a matter of law because he was the sole perpetrator and not an accomplice. We will not disturb on appeal a ruling or decision that itself is correct in law merely because it was given for a wrong reason. (People v. Smithey (1999) 20 Cal.4th 936, 971-972; accord People v. Jones (2012) 54 Cal.4th 1, 50.)
As for the issues Smith does raise, he is mistaken on all points. Senate Bill 567 applies retroactively to cases in which the judgment of conviction is not final. (People v. Butler (2023) 89 Cal.App.5th 953, 958-959, review granted May 31, 2023, S279633.) Smith's judgment of conviction is final. Only defendants whose judgments are not final are entitled to the retroactive application of ameliorative legislation under In re Estrada (1965) 63 Cal.2d 740, and Smith never appealed from the October 2021 judgment (nor could he have, without a certificate of probable cause).
Nor is personal use of a firearm an element of the crime of manslaughter. (See CALCRIM No. 570.)
Smith's remaining contentions are essentially variations on these two themes. They are without merit for the same reasons.
We have independently reviewed the record and find no arguable issues. We are satisfied Smith's counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.)
DISPOSITION
The order is affirmed.
We concur: LAVIN, Acting P. J., ADAMS, J.