Opinion
D073647
07-17-2018
THE PEOPLE, Plaintiff and Respondent, v. KEITH SHAWN COSBY, Defendant and Appellant.
Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CR84617) APPEAL from an order of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In 1989, Keith Shawn Cosby was sentenced to prison for life without the possibility of parole, consecutive to a term of 25 years to life. The sentence followed convictions by a jury of two counts of first degree murder (Pen. Code, § 187, subd. (a)), two counts of robbery (§ 211) and two counts of burglary (§ 459). The jury found true special circumstance allegations of felony murder relating to the first degree murder counts (§ 190.2, subd. (a)(17)(i)), and firearms enhancements under sections 12022, subdivision (a) and 12022.5. The sentence included one year for a prison prior (§ 667.5, subd. (b)) and five years for a serious felony prior conviction (§ 667, subd. (a)).
All further statutory references are to the Penal Code unless otherwise specified.
In November 2017, Cosby filed a petition to recall his 1989 sentence and seeking relief under the Three Strikes Reform Act of 2012 (Proposition 36; § 1170.126). The petition was based on Cosby's claim that there was insufficient evidence to support the special circumstance as an aider and abettor under the reasoning of People v. Banks (2015) 61 Cal.4th 788 (Banks).
The record on appeal does not include a transcript or minutes from the 1988 conviction. Nor does it include materials from the direct appeal and numerous habeas corpus petitions that have been filed since the 1988 conviction. --------
The trial court denied Cosby's petition on February 20, 2018, finding Cosby had not been sentenced under the three strikes law (§ 667, subds. (b)-(i)), thus he was not entitled to relief under section 1170.126. The court (which was the trial court for the underlying convictions) found Banks, supra, 61 Cal.4th 788 was not implicated by the facts of the offenses in this case and further, that the court did not have jurisdiction to recall the sentence under section 1170, subdivision (d) since more than 120 days had elapsed since the judgment was imposed. The court concluded that Cosby's remedy, if any, was by way of a petition for writ of habeas corpus.
Cosby filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating she has been unable to identify any arguable issue for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Cosby the opportunity to file his own brief on appeal, but he has not responded.
The facts of the underlying offenses are not before us and we have no transcripts or minutes from the 1988 and 1989 proceedings as part of our record on appeal.
DISCUSSION
As noted above, counsel has not identified any arguable issue for reversal on appeal. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel has identified three possible issues for our consideration:
1. Was Cosby entitled to relief under Banks, supra, 61 Cal.4th 788? The Banks case, decided in 2015, places some limitations on the potential liability of defendants, who are aiders and abettors where special circumstances are alleged. We do not have any record of the trial proceedings almost 30 years ago. Thus, we have no way to evaluate a claim that Banks requires relief from the sentence imposed. Cosby's remedy, if any, is by way of a petition for writ of habeas corpus.
2. Whether Cosby was entitled to relief under Proposition 36. As the trial court noted, Cosby was not sentenced under the three strikes law, which was not even in effect at the time Cosby was sentenced in 1989.
3. Did the court lack jurisdiction to recall the sentence under section 1170, subdivision (d)? As the trial court pointed out, trial court jurisdiction under section 1170, subdivision (d) ends 120 days after judgment.
We have reviewed the entire record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not identified any arguable issue for reversal on appeal. Competent counsel has represented Cosby on this appeal.
DISPOSITION
The order denying the petition to recall the sentence is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.