Opinion
C097430
08-14-2023
THE PEOPLE, Plaintiff and Respondent, v. ROGER ADAMS, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 05F03192
DUARTE, ACTING P.J.
Defendant Roger Adams appeals from the denial of his postconviction petition for relief under Penal Code section 1172.6. Counsel for defendant filed a brief seeking our independent review under People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216 to determine whether there are any arguable issues on appeal. Defendant also filed a supplemental brief in propria persona. Disagreeing with defendant's claims of error, we will affirm.
Further undesignated statutory references are to the Penal Code. Defendant filed his petition under former section 1170.95. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 with no change in the text. (Stats. 2022, ch. 58, § 10.) We will refer to the statute by its current section number.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and his codefendant "are known members of the Nogales Gangster Crips, a gang that was embroiled in an ongoing war with the Elm Street Bloods. One night, defendants drove down Elm Street and fired shots at people who were outside a house known as an Elm Street Bloods hangout. One person was shot in the hand, and an occupied car was also hit." (People v. Trotter (Jan. 15, 2009, C055472) [nonpub. opn.].)
In 2007, a jury found defendant guilty of two counts of attempted murder (§§ 187 subd. (a), 664), discharging a firearm from a motor vehicle (§ 12034, subd. (c)), and discharging a firearm at an occupied vehicle (§ 246); the jury found true gang and firearm enhancements (§§ 12022.53, subd. (c), 186.22); and the court found true prior conviction allegations (§ 667, subd. (a)). Defendant was sentenced to 60 years to life plus 50 years in prison. (People v. Trotter, supra, C055472.) In June 2022, defendant filed a petition seeking resentencing under section 1172.6. He alleged "that pursuant to new existing law[,] that the substantial evidence to support his conviction for attempted murder would not presently stand the beyond a reasonable doubt standard."
The trial court appointed counsel to represent defendant on his petition.
The People's response to the petition attached the verdicts and jury instructions from defendant's trial. The People argued these filings established that defendant was not convicted under the natural and probable consequences doctrine and that, instead, the jury found defendant acted with the intent to kill. The jury had also found true the allegation that defendant acted with deliberation and premeditation.
The trial court found defendant's petition failed to make a prima facie showing for relief under section 1172.6.
Defendant filed a timely notice of appeal.
We appointed counsel to represent defendant on appeal. Counsel filed a brief pursuant to Wende and Delgadillo requesting that we independently review the entire record and stating defendant had been advised of the right to file a supplemental brief to raise any issues he believed deserved review. We notified defendant that, under Delgadillo, he had 30 days to file a supplemental brief or letter raising any issue he wished us to consider. We advised that if we did not receive a supplemental letter or brief within the 30 days, the appeal may be dismissed as abandoned. Defendant filed a supplemental brief in propria persona.
DISCUSSION
Under Delgadillo, we must "evaluate the specific arguments presented in [defendant's supplemental brief]," but we are not compelled to undertake an "independent review of the entire record to identify unraised issues." (People v. Delgadillo, supra, 14 Cal.5th at p. 232.) We proceed accordingly.
Defendant raises three main arguments, which we next interpret, summarize, and address to the best of our ability. He first argues that the jury instructions collectively allowed the jury to develop a natural and probable consequences theory despite its lack of instruction in that theory.
We begin by noting that we must presume the jury followed its instructions. (People v. McKinnon (2011) 52 Cal.4th 610, 670.) Section 1172.6 permits resentencing of attempted murder convictions only if the person was convicted of "attempted murder under the natural and probable consequences doctrine." (§ 1172.6, subd. (a).) The jury in defendant's trial was not given a natural and probable consequence instruction, as defendant concedes, and instead was required to find defendant personally harbored the intent to kill to find him guilty of attempted murder. (See CALCRIM No. 600.) This finding renders him ineligible for relief under section 1172.6 as a matter of law, and the trial court properly denied defendant's petition on this basis. (See People v. Harden (2022) 81 Cal.App.5th 45, 52 ["if the record shows that the jury was not instructed on either the natural and probable consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a matter of law"].)
Defendant next argues Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill No. 333) requires reassessment of the gang evidence presented at trial. Assembly Bill No. 333 "amended section 186.22 to impose new substantive and procedural requirements for gang allegations." (People v. Sek (2022) 74 Cal.App.5th 657, 665.) Assembly Bill No. 333 applies retroactively "to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Sek, at p. 666.) Defendant's judgment of conviction from his 2007 trial was final long before Assembly Bill No. 333's effective date, so it affords him no relief.
Defendant then argues the prosecutor at trial diluted the burden of proof. We do not consider this argument because the issue is not properly before us on defendant's appeal from the order denying his section 1172.6 petition. (In re J.F. (2019) 39 Cal.App.5th 70, 75 [jurisdiction on appeal limited to judgment or order appealed from].)
DISPOSITION
The trial court's order denying defendant's petition for resentencing under section 1172.6 is affirmed.
We concur: Krause, J., Boulware Eurie, J.