Opinion
C091345
06-08-2023
THE PEOPLE, Plaintiff and Respondent, v. ERNEST ERASTUS CLARK, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 02F07480
MAURO, J.
Defendant Ernest Erastus Clark appeals from an order denying his petition to vacate his murder conviction under Penal Code section 1172.6. Appointed counsel for defendant originally asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) This court dismissed the appeal as abandoned when defendant did not file a supplemental brief. The California Supreme Court granted review of the case and later transferred the matter back to this court with instructions to vacate the dismissal and reconsider the case in light of People v. Delgadillo (2022) 14 Cal.5th 216. We sent a notice to defendant informing him of his opportunity to file a supplemental brief under Delgadillo and defendant filed a supplemental brief raising various issues. Having considered defendant's arguments, we will affirm the trial court's order.
Undesignated statutory references are to the Penal Code. Defendant filed his petition in 2019 under former section 1170.95. Effective June 30, 2022, former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
BACKGROUND
In 2004, a jury found defendant guilty of second degree murder (§ 187, subd. (a)), driving under the influence of a drug causing bodily injury (Veh. Code, § 23153, subd. (a)), and misdemeanor hit and run (Veh. Code, § 20002, subd. (a)). (People v. Clark (July 18, 2006, C048285) [nonpub. opn.].) On direct appeal, this court affirmed the judgment. (Ibid.)
This court summarized the evidence from trial, stating: "While driving under the influence of methamphetamine, [defendant] caused a head-on collision resulting in serious bodily injury. One year later, again while driving under the influence of methamphetamine, he caused another head-on collision, this time killing two people and seriously injuring another." (People v. Clark, supra, C048285.)
In February 2019, defendant filed a petition for resentencing, alleging his conviction was based on felony murder or murder under the natural and probable consequences doctrine and he could not now be convicted because of changes made to sections 188 and 189, effective January 1, 2019. The parties submitted briefing and the trial court denied the petition in a written order, noting that the jury had been instructed on malice aforethought murder and there was no instruction on second degree felony murder or the natural and probable consequences doctrine. Concluding that second degree murder based on a malice aforethought theory was still permissible under sections 187 and 188, the trial court found defendant ineligible for relief and denied the petition.
DISCUSSION
Defendant was advised that he could file a supplemental brief within 30 days from the date of the filing of the opening brief. Defendant filed a supplemental brief raising several issues.
A reviewing court need not engage in a full Wende review on a challenge to an order denying postconviction relief under section 1172.6. (People v. Delgadillo, supra, 14 Cal.5th at pp. 221-222.) Where, as here, a defendant has filed a supplemental brief, a court of appeal need only evaluate the specific arguments presented in the brief. (Id. at p. 232.) "The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues." (Ibid.)
Defendant notes that his murder convictions were based on an implied malice theory, and argues his counsel was ineffective in failing to bring this to the trial court's attention because it renders him eligible for relief under section 1172.6. But section 1172.6 addresses theories of imputed malice, not implied malice. Implied malice murder remains a valid murder theory. (People v. Vizcarra (2022) 84 Cal.App.5th 377, 391.) Defendant has not established that his counsel was ineffective. (People v. Lucero (2000) 23 Cal.4th 692, 732 [counsel is not deficient for declining to make meritless arguments].)
Defendant argues similarly that he is entitled to relief because he was convicted under an implied malice theory. As noted above, however, implied malice murder is still valid. Defendant cites In re Ferrell (2023) 14 Cal.5th 593 in support of his argument, but that case is distinguishable because it considered whether a true finding on a firearm enhancement allegation rendered harmless an erroneous felony-murder jury instruction. (Id. at p. 116.) It does not help defendant here.
Defendant further claims section 1172.6 violates equal protection principles because it "does not apply to similarly situated individuals that have been convicted on a statute that does not exist for 2nd degree murder." An equal protection challenge requires a defendant to make a threshold" 'showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.'" (People v. Guzman (2005) 35 Cal.4th 577, 591-592, original italics.) Defendant has made no such showing here because he does not identify a group to which he belongs or a group to which he is similarly situated.
In addition, defendant argues his original convictions are "void for vagueness under the Johnson doctrine." But the issue is not cognizable in an appeal from an order denying a resentencing petition under section 1172.6. Moreover, defendant's reliance on Johnson v. United States (2015) 576 U.S. 591 is misplaced. There, the United States Supreme Court found a clause in the Armed Career Criminal Act impermissibly vague because it was too imprecise to give fair notice of prohibited conduct. (Johnson, at p. 606.) As defendant acknowledges, he was convicted under an implied malice theory of murder, which requires a determination that the natural consequences of the criminal act were dangerous to life and the defendant knew of the danger and acted with conscious disregard for life. (People v. Soto (2018) 4 Cal.5th 968, 974.) This inquiry requires the factfinder to gauge the riskiness of defendant's conduct on a particular occasion, not to carry out an abstract inquiry based on "an idealized ordinary case of the crime." (Johnson, at p. 604.) We thus find no merit in defendant's argument.
DISPOSITION
The trial court's order denying the petition for resentencing is affirmed.
We concur: ROBIE, Acting P. J., RENNER, J.