Opinion
C090509
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR JAMES BATTLE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 06F06656)
This appeal arises from the trial court's denial of defendant Arthur James Battle's petition for resentencing. To facilitate our review, we incorporate defendant's previous appeal from his underlying conviction in our opinion in People v. Battle (2011) 198 Cal.App.4th 50 (Battle). "Abramyan approached Barron, an acquaintance, about killing Norik. He agreed to pay Barron $4,000 for the killing and, a few days before the killing, gave Barron $200. The evening before the killing, Abramyan gave Barron an additional $1,800. Abramyan asked Barron if Barron was going to commit the killing alone, and Barron replied, 'Don't worry about it.' [¶] Barron recruited [defendant] and Dillingham to assist him in killing Norik. He offered, and eventually paid, each of them $500." (Battle, p. 56.)
This opinion is part of defendant's record of conviction and was properly considered by the trial court. (See People v. Verdugo (2020) 44 Cal.App.5th 320, 333, review granted Mar. 18, 2020, S2604935 [citing People v. Woodell (1998) 17 Cal.4th 448, 456].)
On the day of the murder, Abramyan brought Norik to a video store so that defendant and Dillingham could shoot him. (Battle, supra, 198 Cal.App.4th at p. 57.) "[Defendant] and Dillingham had waited in the parking lot for a total of about 30 minutes, anxious and pacing, with gloves on and bandanas around their necks. When Norik was alone in the car, [defendant] and Dillingham put the bandanas up over the lower part of their faces, drew handguns, and ran toward the car, with Dillingham ahead of [defendant]. They stopped next to the car, on the driver's side, and shot at Norik. [Defendant] and Dillingham then returned to the car driven by Barron, and they sped away. [¶] Norik died at the scene." (Battle, p. 57.)
The jury found defendant guilty of conspiracy to commit murder and murder with financial gain and lying-in-wait special circumstances. As to each count, the jury found true the enhancement allegation that defendant personally discharged a firearm causing death. (Battle, supra, 198 Cal.App.4th at p. 58.) Defendant was sentenced to life without the possibility of parole for first degree murder, with an additional 25 years to life for the enhancement of personally discharging a firearm causing death. On the conspiracy count, the court imposed an indeterminate term of 25 years to life, with an additional 25 years to life for personally discharging a firearm causing death, which it then stayed pursuant to Penal Code section 654. (Battle, p. 58.) Defendant's convictions were upheld on appeal. (Id. at p. 86.)
Further undesignated section references are to the Penal Code. --------
Thereafter, following the enactment of section 1170.95, defendant filed a postjudgment petition for resentencing. (Senate Bill No. 1437 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1015, § 4.) The trial court appointed conflict counsel to represent defendant. However, following a conference between counsel and the court, it was determined that defendant's case was appropriate for summary disposition, and the matter was set for a hearing. At that hearing, the People argued that a review of the record of conviction established that defendant was ineligible for resentencing because neither the felony-murder nor natural-and-probable-consequence theories were used at trial. The trial court concurred, finding defendant "was the actual killer and not entitled to relief pursuant to Penal Code Section 1170.95." Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the relevant procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief and has filed a supplemental brief arguing: (1) it is not clear whether the trial court considered the coroner's testimony that shows defendant only wounded the victim and therefore undermines his murder conviction; (2) his conviction by an "all white" jury was unconstitutional; and (3) he should be afforded the benefit of a newly passed youthful offender law, which unfairly benefits youthful offenders whose sentences include a period of parole, but not those who are serving life without the possibility of parole.
Whether the protections afforded by Wende and the United States Supreme Court's decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an order denying a petition brought pursuant to section 1170.95 remains 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. Dobson (2008) 161 Cal.App.4th 1422; People v. Taylor (2008) 160 Cal.App.4th 304; People v. Thurman (2007) 157 Cal.App.4th 36; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.) Nonetheless, in the absence of our Supreme Court's authority to the contrary, we believe it prudent to adhere to Wende in the present case, where counsel has already undertaken to comply with Wende requirements, and defendant has filed a supplemental brief.
Having examined the record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. Section 1170.95, subdivision (a) provides: "A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019."
Here, defendant was convicted of first degree murder for financial gain and the jury found true the enhancement allegation that he discharged a firearm causing death. (Battle, supra, 198 Cal.App.4th at p. 58.) This renders defendant ineligible for relief because he fails to satisfy the requirements of section 1170.95, subdivision (a)(3) as a matter of law. To the extent defendant is arguing that the coroner's trial testimony could be used to support a theory that he was not the actual killer and thus eligible for relief, this argument is foreclosed by the jury's determinations. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1138-1139, review granted Mar. 28, 2020, S260598 [the jury's direct finding contradicted and controlled defendant's asserted eligibility for relief].)
Finally, defendant's arguments concerning the composition of his jury and the unavailability of youthful offender resentencing to individuals sentenced to life terms without the possibility of parole are not cognizable from a denial of his section 1170.95 petition and are thus not further analyzed here.
We therefore affirm the trial court's order denying defendant's petition for resentencing.
DISPOSITION
The order is affirmed.
/s/_________
Robie, Acting P. J We concur: /s/_________
Duarte, J. /s/_________
Hoch, J.