Opinion
C089952
04-10-2020
THE PEOPLE, Plaintiff and Respondent, v. DARRYL KEITH ALEXANDER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10F05063)
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436.
Most of the background facts are taken from People v. Alexander (Oct. 26, 2012, C068986) [nonpub. opn.]).
While operating a motor home under the influence of alcohol, defendant Darryl Keith Alexander struck and killed the victim. An information charged defendant with multiple crimes, including murder, gross vehicular manslaughter while intoxicated, and felony hit and run. (Pen. Code, §§ 187, subd. (a), 191.5, subds. (a), (b); Veh. Code, § 20001, subd. (b)(2).)
After a court trial, the court found defendant guilty of murder and the other charges previously mentioned, and sentenced him to 70 years to life plus 11 years in state prison. In 2012 we affirmed defendant's convictions in his direct appeal from the criminal judgment.
On January 2, 2019, defendant filed a Penal Code section 1170.95 petition for resentencing, pursuant to recently enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.). On June 14, 2019, the trial court ruled defendant was ineligible for Penal Code section 1170.95 relief, and denied the petition.
Defendant appeals from that order.
Appointed counsel for defendant asked this court independently to review the record pursuant to Wende. Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
Whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an order denying a petition brought pursuant to Penal Code section 1170.95 is an open question. Our Supreme Court has not spoken. The Anders/Wende procedures address appointed counsel's representation of an indigent criminal defendant in the first appeal as a matter of right and courts have been loath to expand their application to other proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551 ; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th 952; People v. Martinez (2016) 246 Cal.App.4th 1226; People v. Kisling (2015) 239 Cal.App.4th 288; People v. Serrano (2012) 211 Cal.App.4th 496.) Nonetheless, in the absence of Supreme Court authority to the contrary, we will adhere to Wende in the present case, where counsel has already undertaken to comply with Wende requirements and defendant has been afforded an opportunity to file a supplemental brief.
To the extent that defendant intended his August 30, 2019 filing to be a supplemental brief, the contentions in the brief do not suggest any relevant arguable error.
Any possible ineffective assistance of counsel in defendant's direct appeal is immaterial to the trial court's ruling on appeal. And defendant's apparent contention that he is entitled to Penal Code section 1170.95 relief since a "malice theory was used" at his trial, is unavailing, because defendant was the "actual killer" of the victim. (See People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410.)
Having undertaken an examination of the record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment (order) is affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
MURRAY, J. /s/_________
KRAUSE, J.