Opinion
D079990
10-27-2022
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ARTHUR BUSH, Defendant and Appellant.
Anthony Arthur Bush, in pro. per.; and Benjamin Boyce Kington, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County (Super. Ct. No. SCD108063), Michael S. Groch, Judge. Affirmed.
Anthony Arthur Bush, in pro. per.; and Benjamin Boyce Kington, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
DO, J.
FACTUAL AND PROCEDURAL BACKGROUND
In 1994, 20-year-old Anthony Arthur Bush fatally shot a man after the man refused to hand over his wallet to Bush. A jury convicted Bush of first degree murder (Pen. Code, § 187, subd. (a); count 1) with a robbery-murder special circumstance finding (§ 190.2, subd. (a)(17)), and attempted robbery (§§ 664, 211, 213, subd. (b); count 2). The jury also found true as to both counts that Bush personally used a firearm. (§ 12022.5, subd. (a).) The trial court sentenced him to life without the possibility of parole for murder plus a consecutive term of four years for the firearm enhancement. The court stayed punishment on the attempted robbery conviction and related firearm enhancement finding, pursuant to section 654.
All further statutory references are to the Penal Code.
On his direct appeal, we rejected claims of evidentiary and instructional errors as well as a claim that he was erroneously denied access to proceedings concerning a confidential informant. We affirmed the conviction in an unpublished opinion. (People v. Bush (Jun. 12, 1997, D025198) [nonpub. opn.].)
Two years later, we denied a petition for writ of habeas corpus in which Bush alleged the trial court erroneously admitted letters he wrote in jail after the murder that depicted him as a racist gang member. (In re Bush (Sept. 9, 1999, D033821 [nonpub. order].)
In 2009, the United States District Court, Southern District of California denied Bush's petition for writ of habeas corpus in which he alleged the prosecutor violated Batson v. Kentucky (1986) 476 U.S. 79, when she exercised a peremptory challenge to excuse the sole remaining African-American prospective juror in the jury pool. The United States Court of Appeals for the Ninth Circuit affirmed in a 2011 unpublished opinion, concluding the prosecutor's stated reasons for striking a prospective alternate juror were race-neutral and the district court did not err in finding no purposeful racial discrimination. (Bush v. Pliler (9th Cir., Feb. 16, 2011) 413 Fed.Appx. 996, 997.)
In 2015, we denied a petition for writ of habeas corpus in which Bush again collaterally attacked his judgment of conviction contending, among other issues, the racial composition of the jury pool was not representative of San Diego County and the prosecutor committed misconduct by implying the murder was racially motivated and by her investigator's alleged intimidation of a potential defense witness. We determined his petition, filed nearly 20 years after sentencing, was barred as untimely and Bush had not shown good cause for substantial delay to justify consideration of his claims. We concluded his claims were also procedurally barred because the facts and arguments were available at the time of trial but were not raised either in his prior appeal or in his subsequent petition for writ of habeas corpus. (In re Anthony Arthur Bush (Sept. 4, 2015, D068752 [nonpub. order].)
Bush raised the issue again in federal court by seeking relief from the judgment under Federal Rule of Civil Procedure 60(b)(6), based on the case of Shirley v. Yates (9th Cir. 2016) 807 F.3d 1090. The district court denied the motion as a successive habeas petition seeking to attack the federal court's previous resolution of a claim on the merits without permission from the Ninth Circuit. (Bush v. Pliler (S.D. Cal., Jun. 22, 2016, 01CV142 BEN (NLS) .) The Ninth Circuit denied his appeal as untimely. (Bush v. Pliler (9th Cir., Mar. 8, 2017) .)
In 2019, Bush filed a motion requesting a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 to present youth-related mitigation evidence for an eventual youth offender parole hearing under section 3051. The trial court denied the motion on the basis that section 3051 does not apply to offenders serving sentences of life without the possibility of parole. We rejected Bush's equal protection challenge to section 3051 and affirmed the order. (People v. Bush (Feb. 26, 2021, D077085 [nonpub. opn.].)
While Bush's appeal in D077085 was pending, Bush's appointed counsel found an error concerning the calculation of his custody credits. On September 30, 2020, Bush submitted an informal request to correct presentence custody credits per section 1237.1. Bush's counsel explained Bush should have received 46 days of worktime credits (307 actual custody times 15 percent) instead of 54 days, under section 2933.1. Bush acknowledged the correction resulted in a reduction of credits, "but nonetheless request[ed] that the error be corrected." The People agreed the custody credits had been miscalculated and did not oppose a reduction of the credits. On January 20, 2022, the Superior Court recalculated the credits and amended the judgment and the abstract of judgment nunc pro tunc to reflect 46 days of worktime credits under section 2933.1. Bush appealed.
Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), stating he was unable to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende and Anders v. California (1967) 386 U.S. 738 (Anders). We offered Bush the opportunity to file his own brief on appeal and he has responded. We will discuss his submission below.
The facts of the offenses are set forth in our previous opinion on the merits. (People v. Bush, supra, D025198.) We will not repeat them here.
DISCUSSION
Appellate counsel filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders, supra, 386 U.S. 738, counsel identified the following possible issues that were considered in evaluating the potential merits of this appeal:
1. Did the superior court correctly calculate Bush's presentence custody credits?
2. Does the recalculation and correction of credits render Bush's sentence non-final, such that later ameliorative changes in the law apply to his case?
Bush's supplemental brief does not assert error with respect to the court's January 20, 2022 order correcting the presentence custody credits. He contends, however, that the order "re-entered" the judgment such that he is entitled to the benefit of the Racial Justice Act (Stats. 2020, ch. 317, § 3.5), which became effective January 1, 2021 and is codified in interrelated statutes (§§ 745, 1473, subd. (f), 1473.7, subd. (a)(3)). The Racial Justice Act provides generally that the "state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." (§ 745, subd. (a); Young v. Superior Court (2022) 79 Cal.App.5th 138, 147.) Bush's supplemental brief focuses entirely on his claim, which he has unsuccessfully raised previously in both state and federal courts, that the prosecutor improperly exercised a peremptory challenge to the sole remaining African-American prospective juror and made comments in closing statement that Bush was a racist gang member. By its terms, however, the Racial Justice Act applies prospectively only to judgments not entered before January 1, 2021. (§§ 745, subd. (j); 1473, subd. (f).) The court's order of January 20, 2022 did not recall his sentence; it corrected a clerical error in the calculation of custody credits. Therefore, his judgment is final and he is not entitled to the benefit of subsequent ameliorative changes to the law. (People v. Humphrey (2020) 44 Cal.App.5th 371, 380; People v. Magana (2021) 63 Cal.App.5th 1120, 1126-1127.) In short, Bush's contentions do not identify arguable issues for reversal on appeal based on the record before us.
We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Bush on this appeal. DISPOSITION The order of January 20, 2022 amending Bush's pre-sentence credits nunc pro tunc is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., O'ROURKE, J.