Opinion
H047924
09-21-2020
THE PEOPLE, Plaintiff and Respondent, v. FREDDY GOMEZ CARRANZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS132242)
I. INTRODUCTION
A jury convicted defendant Freddy Gomez Carranza of second degree murder (Pen. Code, § 187) and found true the allegations that defendant personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)) and had been released from custody on bail or his own recognizance when he committed the offense (§ 12022.1, subd. (b)). Defendant appealed from the judgment, and this court reversed and remanded the matter for limited purposes. This court subsequently affirmed the conviction when defendant appealed after remand.
All further statutory references are to the Penal Code.
Defendant now appeals from a postconviction order dismissing his petition for resentencing pursuant to section 1170.95, which allows individuals convicted of felony murder or murder under the natural and probable consequences doctrine to petition the trial court to vacate the conviction under recent changes to the law. Defendant asserted in his section 1170.95 petition that he shot and killed the victim in self-defense. After appointing defendant counsel, the trial court concluded that defendant had not stated a prima facie case for relief and dismissed the petition.
On appeal, defendant's appointed counsel filed a brief that raised no issues pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), and defendant filed a supplemental brief on his own behalf. Defendant contends that his murder conviction "should be vacated for vagueness under [the] unconstitutional murder rule" and that he was deprived of his constitutional right to the effective assistance of counsel during the section 1170.95 proceedings. (Capitalization and emphasis omitted.)
For reasons that we will explain, we have determined that defendant has not raised an arguable issue. Accordingly, we will dismiss the appeal. (See People v. Serrano (2012) 211 Cal.App.4th 496, 503-504 (Serrano).)
II. PROCEDURAL BACKGROUND
On September 9, 2015, a jury found defendant guilty of second degree murder (§ 187) and found true the allegations that defendant personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)) and had been released from custody on bail or his own recognizance when he committed the offense (§ 12022.1, subd. (b)). The trial court sentenced defendant to 40 years to life.
Defendant appealed, and in case No. H043377, this court reversed the judgment and remanded the matter for the limited purpose of allowing the trial court the opportunity to exercise its discretion to strike the firearm enhancement under newly amended section 12022.53 and for the court to strike a no-contact order and correct several errors in the abstract of judgment.
On remand, the trial court declined to strike the firearm enhancement. Defendant appealed, and in case No. H046883, this court affirmed the judgment. Defendant's petition for review of this court's decision was denied on April 15, 2020.
On December 2, 2019, defendant petitioned the trial court for resentencing pursuant to section 1170.95. The court appointed counsel for defendant. At a subsequent hearing, the court dismissed the petition for failure to state a prima facie case for relief.
Neither party submitted briefing before the section 1170.95 hearing. At the hearing, defendant's counsel stated that defendant "allege[d] numerous times [in the petition] that he's the actual killer" and that "he fired in self-defense."
Defendant timely filed a notice of appeal. This court appointed counsel to represent defendant. On May 12, 2020, appointed counsel filed an opening brief pursuant to Wende, supra, 25 Cal.3d 436, stating the case and facts but raising no issues. On May 18, 2020, we notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant subsequently filed a supplemental brief.
The time period for defendant to provide written argument on his own behalf was extended based on this court's April 16, 2020 emergency order addressing the COVID-19 public health emergency.
III. DISCUSSION
California law entitles a defendant to a first appeal of right from his or her conviction (§ 1237; People v. Kelly (2006) 40 Cal.4th 106, 117 (Kelly)), and a defendant has the constitutional right to the assistance of counsel in that appeal (Douglas v. California (1963) 372 U.S. 353, 355). Thus, when counsel in a first appeal of right notifies the court that there are no arguable issues, the court must conduct an independent review of the record to protect the defendant's right to counsel. (Kelly, supra, at p. 119; see also Wende, supra, 25 Cal.3d at p. 441; Serrano, supra, 211 Cal.App.4th at p. 500.) However, "[b]oth the United States Supreme Court and the California Supreme Court have concluded that due process does not require [independent] review [of the record] other than in the first appeal of right." (Serrano, supra, at p. 500.)
This case is an appeal from a postconviction order; it is not defendant's first appeal of right. Thus, pursuant to Serrano, we consider solely the claims raised in defendant's supplemental brief that (1) the murder conviction "should be vacated for vagueness under [the] unconstitutional murder rule," and (2) defendant was deprived of his constitutional right to the effective assistance of counsel during the section 1170.95 proceedings. (Capitalization and emphasis omitted.)
A. Statutory Background
The Legislature enacted Senate Bill No. 1437 to "amend the felony murder rule and the natural and probable consequences doctrine, . . . to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant of the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) To achieve these goals, the bill amended sections 188 and 189, which pertain to the definition of malice and the degrees of murder. (Stats. 2018, ch. 1015, §§ 2-3.)
As amended, section 188 provides: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (Stats. 2018, ch. 1015, § 2; § 188, subd. (a)(3).) "New section 189, subdivision (e), in turn, provides with respect to a participant in the perpetration or attempted perpetration of a felony listed in section 189, subdivision (a), in which a death occurs—that is, as to those crimes that provide the basis for the charge of first degree felony murder—that the individual is liable for murder 'only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.' " (People v. Lopez (2019) 38 Cal.App.5th 1087, 1099, fn. omitted, review granted Nov. 13, 2019, S258175.)
"Additionally, Senate Bill No. 1437 added section 1170.95, which permits a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by Senate Bill No. 1437. (§ 1170.95, subd. (a).)" (People v. Flores (2020) 44 Cal.App.5th 985, 992 (Flores).) A petition for relief under section 1170.95 must include: "(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner's conviction. [¶] (C) Whether the petitioner requests the appointment of counsel." (§ 1170.95, subd. (b)(1).) "If the petitioner makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and, absent a waiver and stipulation by the parties, hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner. ([§ 1170.95], subds. (c) & (d)(1).)" (Flores, supra, at p. 992.)
B. Analysis
Defendant first contends that his conviction for second degree murder "should be vacated for vagueness under [the] unconstitutional murder rule." (Capitalization and emphasis omitted.) Defendant appears to challenge the validity of his conviction in this claim. However, defendant may not challenge his conviction on appeal from an order dismissing his petition for resentencing pursuant to section 1170.95. More importantly, the judgment against defendant is now final, which also precludes defendant's claim. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [a judgment is final when the time for petitioning for a writ of certiorari in the United States Supreme Court has passed].)
Second, defendant contends he was denied his federal constitutional right to the effective assistance of counsel during the section 1170.95 hearing. However, "there is no constitutional right to the effective assistance of counsel" in state postconviction proceedings. (People v. Boyer (2006) 38 Cal.4th 412, 489, superseded by statute on another ground; see also Coleman v. Thompson (1991) 501 U.S. 722, 752, superseded by statute on another ground.)
Moreover, even if defendant did enjoy a constitutional right to the effective assistance of counsel in the section 1170.95 proceeding, he would be unable to establish he was prejudiced by counsel's performance. (See Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland) [to prevail on an ineffective assistance of counsel claim, a defendant must establish both that his or her counsel's performance was deficient and that he or she suffered prejudice].) As noted by counsel in the trial court, defendant stated in his section 1170.95 petition that he "discharged the firearm . . . and with a single shot cause[d] Sergio R[o]driguez's demise." Because defendant alleged in the petition that he was Rodriguez's actual killer, he is not entitled to relief under section 1170.95 as a matter of law. (See §§ 189, 1170.95, subds. (a), (b).) Also, defendant is precluded from section 1170.95 relief as a matter of law based on the jury's determination that he personally and intentionally discharged a firearm causing great bodily injury and death in violation of section 12022.53, subdivision (d). (See People v. Cornelius (2020) 44 Cal.App.5th 54, 58 [affirming the denial of a section 1170.95 petition because "the changes to sections 188 and 189 are inapplicable" to actual killers].) Thus, defendant cannot establish he was prejudiced by his counsel's performance because there is no "reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's [alleged] errors, the result of the [section 1170.95] proceeding would have been different," and we must reject his claim. (Strickland, supra, at p. 694.)
Defendant contends that prejudice should be presumed because he was constructively denied the assistance of counsel. Defendant asserts that counsel failed to contact him "and obtain the records." Defendant states that after the hearing, he received a letter from counsel indicating that the petition had been dismissed because defendant had alleged he " 'shot Rodriguez.' " Counsel informed defendant that " 'therefore, Penal Code 1170.95[] does not apply to your case.' " Defendant argues: "The [trial] [c]ourt was required to make a prima facie determination before appointing counsel. The . . . [c]ourt . . . made such a determination and therefore appointed counsel. How and why counsel for [defendant] could write and inform him that he did not qualify for relief under 1170.95 is a clear case of abandonment."
The record on appeal does not support defendant's argument that the trial court found defendant had made a prima facie case for relief before the court appointed counsel. A minute order from the date counsel was appointed states that the case was on for "[s]etting per 1170.95," the public defender was appointed, and "[c]ounsel is to review the matter for prima facie [sic]." On the next court date, the court dismissed the petition for failure to state a prima facie case. There is no indication in the record that the trial court at any time found the petition stated a prima facie case for relief.
The record on appeal does not include a reporter's transcript of the proceeding where counsel was appointed.
In sum, defendant fails to articulate any error made by the trial court in dismissing the petition. As nothing in defendant's supplemental brief raises an arguable issue on appeal from the order dismissing the petition for resentencing, we will dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
IV. DISPOSITION
The appeal is dismissed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
ELIA, J.