Opinion
C097132
05-10-2023
THE PEOPLE, Plaintiff and Respondent, v. TUANJA EDWARD ANDERSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 02F06916
RENNER, J.
Defendant Tuanja Edward Anderson appeals from an order denying his second petition to vacate his murder conviction under former Penal Code section 1170.95 (now section 1172.6). Appointed counsel for defendant has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal, and defendant has filed a supplemental brief. (People v. Wende (1979) 25 Cal.3d 436; People v. Delgadillo (2022) 14 Cal.5th 216.) We have considered defendant's arguments and will affirm the trial court's order.
Undesignated statutory references are to the Penal Code. Defendant filed his second petition in March 2022. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). For purposes of clarity and conformity with the petition, we will continue to refer to the statute as former section 1170.95.
I. BACKGROUND
In 2004, a jury found defendant guilty of second degree murder (§ 187, subd. (a)) and found true an allegation defendant intentionally discharged a firearm (§ 12022.53, subd. (d)). On direct appeal, we affirmed the judgment. (People v. Anderson (May 11, 2005, C046338) [nonpub. opn.].)
In 2019, defendant filed his first petition for resentencing under former section 1170.95. In 2020, the trial court denied the petition after reviewing the jury instructions and determining the jury had not been instructed on any theory of felony murder or the natural and probable consequences doctrine.
In March 2022, defendant filed his second petition for resentencing under former section 1170.95. In the petition, defendant alleged he had been prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine; he was convicted of murder under the felony-murder rule or the natural and probable consequences doctrine; and, he could not currently be convicted of murder because of changes made to sections 188 and 189 effective January 1, 2019.
The court appointed counsel and received briefing from the parties. The prosecution briefing attached the direct appeal opinion, the decision denying the first petition, and the jury instructions used at trial. The court held a hearing and entertained argument from the parties, then took the matter under submission. The court denied the petition in a written decision. The record of conviction established defendant was not entitled to relief because the jury was not instructed on any theory of imputed malice. The court further explained the petition was successive in that it did not allege any new or different facts from the original petition and there was no new law that would undermine the basis of the decision denying the first petition.
Defendant filed a notice of appeal.
II. DISCUSSION
Defendant's appointed counsel has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the date the opening brief was filed. Defendant filed a supplemental brief.
The California Supreme Court has considered whether the Wende process applies to a trial court's order denying a petition for postconviction relief under former section 1170.95 and concluded such procedures are not required. (People v. Delgadillo, supra, 14 Cal.5th at pp. 221-222.) The Supreme Court laid out applicable procedures for such cases, saying, where, as here, a defendant has filed a supplemental brief, "the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion. The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues." (Id. at p. 232.)
Defendant argues he received ineffective assistance of counsel at the hearing on the petition for resentencing. He suggests counsel should have argued the murder occurred only because the victim attacked defendant's cousin.
To establish ineffective assistance of counsel, the defendant has the burden of demonstrating that counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and he or she was prejudiced by that deficiency. (People v. Lopez (2008) 42 Cal.4th 960, 966.)
No argument defense counsel could have made at the hearing would have changed the theory under which defendant was convicted. As the trial court observed, the jury at defendant's trial was not instructed on any felony-murder theory or theory under the natural and probable consequences doctrine. The jury could not have convicted defendant on a theory for which it was not instructed. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055.) No self-defense or defense of others argument by defense counsel would have changed this fact. We therefore see no ineffective assistance of counsel.
III. DISPOSITION
The trial court's order denying the petition is affirmed.
We concur: HULL, Acting P. J., MESIWALA, J.