Opinion
C097876
01-31-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA DANIEL SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 62143922)
Duarte, Acting P. J.
Defendant Joshua Daniel Smith filed a petition for resentencing under Penal Code section 1172.6, which the trial court denied after finding defendant failed to make a prima facie showing for relief. Defendant appealed the order denying him postconviction relief, and appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal. 5th 216 (Delgadillo), asking this court to independently review the record to determine if there are any arguable errors that would result in a disposition more favorable to defendant. Defendant filed a supplemental brief. Having considered defendant's supplemental brief in accordance with Delgadillo, we affirm the order.
Undesignated statutory references are to the Penal Code. Defendant originally filed his petition under former section 1170.95. The Legislature amended section 1170.95 effective January 1, 2022, under Senate Bill No. 775 (20212022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill No. 775). Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 without substantive change. (See Stats. 2022, ch. 58, § 10.) We refer to section 1172.6 throughout the opinion.
BACKGROUND
In 2017, defendant was charged with the murder (§ 187) of victims Jason Benson (count one) and Warren Galsote (count two). The information included special circumstance allegations of multiple murders (§ 190.2, subd. (a)(3)) and murder by lying in wait (§ 190.2, subd. (a)(15)), and also alleged several enhancements for personally using a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b), (c), &(d)).
Both victims were found with a gunshot wound to the back of the head and had been set on fire; they later died at the hospital. Blood spatter matching the victims' blood, together with defendant's DNA, were found on the gas can found next to the bodies. Defendant's cell phone pinged in the area close to the murders. Defendant was connected to the gun, but another individual also was connected to the gun as he had been convicted of using it to kill a different person a week prior to the crimes alleged here. The trial court instructed the jury on the third-party culpability defense. The jury failed to reach verdicts, and the court declared a mistrial.
This brief factual summary is based on the probation report and statements made at the sentencing hearing. It is provided solely for context.
The prosecution later reached a plea agreement with defendant. Under the terms of the parties' February 2019 plea agreement, the information was amended to include two counts of voluntary manslaughter (§ 192, subd. (a); counts three [victim Benson] &four [victim Galsote]), and defendant pleaded no contest to the newly added counts and admitted that he personally used a firearm for count three (§ 12022.5, subd. (a)) in exchange for a stipulated term of 16 years in state prison and a concurrent term on another pending burglary case. The parties stipulated to the trial transcript as the factual basis for defendant's plea. In March 2019, the trial court sentenced defendant to the stipulated 16-year term.
Three years later, in March 2022, defendant filed a section 1172.6 petition for resentencing and requested appointment of counsel. The trial court found defendant's petition facially sufficient, appointed him counsel, and gave the parties the opportunity to submit briefing. According to the court's order, after the court received the parties' briefs, it would" 'hold a hearing to determine whether the petition has made a prima facie case for relief.' "
In May 2022, the People opposed the petition, arguing defendant was not entitled to relief as a matter of law because at the time defendant pleaded no contest the relevant statutes were already amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 2) (Senate Bill No. 1437), and, thus, defendant could not have been convicted on a now-invalid theory such as the natural and probable consequences doctrine. The People further argued that the prosecution's theory had consistently been that defendant actually killed the victims and that the charging document had never referenced a co-defendant or any nonhomicide felony that could serve as the basis for an implied malice felony-murder theory. They attached copies of the original information and the information as amended at defendant's plea hearing in February 2019 as well as the transcripts of the court's instructions to the jury during defendant's trial and of defendant's change of plea hearing. In September 2022, defendant's appointed counsel filed a reply, asserting that he had made a sufficient prima facie showing for relief.
On October 13, 2022, the trial court issued a written order stating that based on the pleadings submitted to the court, it appeared that defendant had made a prima facie case that he was entitled to relief, but pursuant to section 1172.6, subdivision (c), the court set the matter for a prima facie hearing two weeks later on October 26.
Two days before the scheduled hearing, defense counsel filed a conditional waiver of appearance. Given the court's October 13 order indicating a tentative prima facie finding, defendant waived his appearance to the extent the court merely intended to issue a formal order to show cause at the hearing. However, if the court anticipated a contested prima facie hearing, then defendant requested that he be personally present for the hearing to ask that "the matter be continued to permit appropriate orders to issue."
Defendant was not present at the October 26 prima facie hearing. At the hearing, the court explained its tentative prima facie finding as follows: Because there had been a significant third-party culpability issue that arose midtrial that resulted in the court giving aiding and abetting instructions, it was possible that there could be a theory upon which aiding and abetting or natural and probable consequences could apply to at least one of the voluntary manslaughter counts where defendant had not admitted the personal use of a firearm enhancement. The court, however, acknowledged that under the statute that provided for a prima facie hearing (§ 1172.6, subd. (c)), the parties were free to further argue the issue before it ultimately made its final prima facie decision.
Defense counsel indicated that if there was going to be a hearing, defendant wanted to be present, and that counsel needed to check with defendant to see if he wanted to be transported for a hearing on the potential consequences if the petition was ultimately granted; counsel suggested continuing the matter for several weeks so he could talk to defendant.
The trial court replied that the present hearing was really about the prima facie determination, and he asked for the prosecutor's thoughts on that issue. The prosecutor stated he wanted to argue the matter, but he did not want to argue without defendant present if defendant wished to be there. When the court asked the prosecutor to clarify whether he wanted to argue the prima facie issue or the merits, and the prosecutor responded the prima facie issue, the court concluded that defendant's presence was not required at the hearing on the prima facie determination.
The prosecutor then reiterated his argument that defendant had failed to make a sufficient prima facie showing because the date of his plea in February 2019 postdated the change in the murder statutes under Senate Bill No. 1437, which went into effect in January 2019. Thus, the law had not changed since the time of defendant's plea, rendering him ineligible for relief as a matter of law.
The trial court raised the impact, if any, of the fact that section 1172.6 was not expanded to include voluntary manslaughter until after defendant's plea. While the prosecutor agreed the resentencing statute was amended in January 2022 to expand eligibility to include those convicted of manslaughter and attempted murder, he nevertheless argued that defendant was not under any danger of being convicted of murder on an invalid theory when he pleaded to manslaughter because the law concerning murder had already changed the previous month. In other words, although eligibility for relief was not expanded to include manslaughter until after the plea, the very premise for relief from the manslaughter plea--that defendant could have been convicted under an invalid theory of murder at the time of his plea but "could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189 by Senate Bill No. 1437, effective January 1, 2019"--was invalid. (See § 1172.6, subds. (a), (b).)
When asked for his thoughts on the legal issue the prosecutor raised, defense counsel responded: "Your Honor, my office is very aware of that issue. We don't have any additional argument to present contrary to what [the prosecutor] said." The trial court took the matter under submission, stating that it had not yet determined whether defendant had in fact made a sufficient prima facie showing. The court set the matter for a further status hearing, which the court indicated may be moot if it agreed with the People's argument.
On December 19, 2022, the trial court issued an order denying defendant's petition for failure to make a prima facie showing. In so doing, the court found that defendant had pleaded no contest in February 2019 and was sentenced in March 2019, after the January 1, 2019, effective date of Senate Bill No. 1437, which had amended sections 188 and 189. Because it was no longer legal to proceed on a theory of murder under the natural and probable consequences doctrine and the felony-murder rule had been changed when defendant entered his plea, the record did not show that an invalid legal theory served as the basis for defendant's plea and that defendant's admission of the personal use of a firearm for one manslaughter count supported that interpretation. Given the court's ruling, it vacated the previously scheduled status hearing. Defendant timely appealed.
DISCUSSION
Wende's independent review procedures are not constitutionally required in an appeal from a postconviction order denying a section 1172.6 petition for resentencing. (Delgadillo, supra, 14 Cal.5th at pp. 222, 224-225.) Where, like here, the defendant has been notified that his appeal may be dismissed pursuant to Delgadillo and he files a supplemental brief raising various issues he wants considered, we must evaluate the specific arguments presented in the defendant's supplemental brief, but we are not required to independently review the record, although we may exercise our discretion to do so. (Id. at pp. 228-232.)
Applying Delgadillo's guidance here, we turn to the issues defendant raises in his supplemental brief. Defendant first contends his appellate counsel erroneously submitted a Wende brief. He requests that we remove his appointed appellate counsel, strike the Wende brief, and assign alternate counsel. We reject his argument.
Appellate counsel is permitted to submit a Wende brief if, after evaluating an appeal, counsel finds no specific issues to raise. (Delgadillo, supra, 14 Cal.5th at p. 221.) There is no basis in the record to remove defendant's appointed appellate counsel.
Defendant next asserts the trial court erred by finding initially that he made a prima facie case for relief but then, for reasons unknown, changed its position to find he had not made a sufficient prima facie showing and thereafter canceled the further status hearing. The court, however, made it clear that its initial prima facie assessment was only tentative and that it would take the matter under submission for a final prima facie determination following the prima facie hearing required under section 1172.6, subdivision (c). That the court's tentative prima facie determination changed after considering the parties' arguments at the prima facie hearing does not mean the court erred or otherwise proceeded improperly.
Defendant argues he received ineffective assistance of counsel because his attorney at the hearing was not his appointed counsel, but merely a coworker of his appointed counsel who was unfamiliar with his case. To prevail on a claim of ineffective assistance of counsel, defendant bears the burden of showing (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217; People v. Haskett (1990) 52 Cal.3d 210, 248 [the defendant bears the burden of proof on ineffective assistance of counsel claim].)" 'Surmounting Strickland's high bar is never an easy task'" (Harrington v. Richter (2011) 562 U.S. 86, 105), and defendant has failed to satisfy that burden here.
The trial court appointed the public defender's office for defendant and the attorney who appeared at the hearing was from that office and represented that he was familiar with defendant's case. Nothing in the record contradicts counsel's representations. To the extent defendant implies that counsel's performance at the prima facie hearing fell below prevailing professional norms because he did not oppose the prosecutor's argument at the hearing, counsel reasonably could have determined that no additional argument was necessary because defendant had already submitted a written reply brief arguing he made a sufficient prima facie showing.
Further, the prosecutor's argument was a legal one, which the trial court had already challenged by noting that although defendant pleaded no contest after Senate Bill No. 1437 amended the murder statutes (sections 188 and 189), his plea occurred before Senate Bill No. 775 amended section 1172.6 to expand eligibility for relief to those convicted of manslaughter. Because the impact of the timing of defendant's plea on the prima facie showing was sufficiently raised and considered by the court at the hearing, defendant was not prejudiced when counsel declined to argue further. The arguments the prosecutor may or may not have made during the trial prior to defendant's subsequent plea deal did not affect the prosecutor's legal argument at the prima facie hearing that the date of the plea agreement precluded relief as a matter of law.
Indeed, there was no prejudice apparent in counsel's failure to argue further because the trial court was correct, as we next explain.
The trial court found that defendant failed to make a prima facie showing because he was ineligible for relief as a matter of law. He pleaded no contest to the voluntary manslaughter offenses in February 2019, which was after the effective date of the change in the law to the murder statutes. His plea to the lesser included offense of voluntary manslaughter, with the advice and consent of counsel, was pursuant to the current requirements of a murder conviction; thus, defendant could not claim that he was facing conviction on a now-invalid theory of murder at the time he entered his plea. The trial court did not err in reaching this legal conclusion. Simply put, although eligibility for relief was later expanded to include manslaughter, the trial court did not deem defendant ineligible for relief based on his plea to manslaughter. Indeed, the trial court found defendant's petition met the threshold requirements for eligibility. Defendant was properly deemed ineligible for relief as a matter of law because the very premise for relief from his manslaughter pleas--that defendant could have been convicted under an invalid theory of murder at the time of his pleas but "could not presently be convicted of murder or attempted murder because of changes made to Sections 188 or 189 [by Senate Bill No. 1437] made effective January 1, 2019"--is invalid. (See § 1172.6, subd. (a)(3), italics added.) Nothing relevant about defendant's status changed from the time of his plea onward. (See e.g., People v. Reyes (2023) 97 Cal.App.5th 292, 277-278, 280 [defendant who was convicted after Senate Bill No. 1437 became effective not entitled to relief under section 1172.6 because the defendant was convicted under current law].)
The trial court did not err in finding defendant failed to state a sufficient prima facie case under section 1172.6, subdivision (c).
Defendant does not argue in his supplemental opening brief that the trial court erred in conducting the prima facie hearing in his absence. (See People v. Basler (2022) 80 Cal.App.5th 46, 51, 56-58 [under section 1172.6, the evidentiary hearing after issuance of order to show cause was akin to a plenary resentencing and therefore constituted a critical stage of the proceedings at which defendant had a right to be present; trial court erred in proceeding in his absence without a knowing and valid waiver of his appearance].) Because defendant was ineligible for resentencing as a matter of law, any error in that regard is necessarily harmless beyond a reasonable doubt.
DISPOSITION
The order denying the section 1172.6 resentencing petition is affirmed.
We concur: Boulware Eurie, J. Wiseman, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.