Opinion
G058190
03-26-2020
THE PEOPLE, Plaintiff and Respondent, v. LAKISHA NICHELLE CROWDER Defendant and Appellant.
Alex Kreit, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14NF2777) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
We appointed counsel to represent Lakisha Nichelle Crowder on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on Crowder's behalf.
Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124 (Kelly).)
Pursuant to Anders v. California (1967) 386 U.S. 738, counsel provided the court with one issue that might arguably support an appeal. Counsel questioned if the trial court erred by concluding that Crowder is ineligible for resentencing pursuant to Penal Code section 1170.95 (all further statutory references are to the Penal Code, unless otherwise indicated).
We gave Crowder 30 days to file written argument on her own behalf. Crowder did not file a supplemental brief.
We have reviewed the record in accordance with our obligations under Kelly and Wende. We found no arguable issues on appeal. We affirm the judgment.
FACTS
The facts of the offenses can be found in People v. Crowder (Jan. 24, 2017, G051851) [nonpub. opn.] (Crowder). We include here only the facts relevant to address the limited issue in this appeal.
In 2014, a jury convicted Crowder of deliberate and premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a)), carjacking (§ 215, subd. (a)), and evading while driving recklessly (Veh. Code, § 2800.2), and found true a firearm enhancement (§ 12022, subd. (d)). The trial court sentenced Crowder to life in prison with the possibility of parole for attempted murder plus one year for the firearm enhancement. In 2017, we affirmed the judgment. (Crowder, supra, G051851.)
In August 2019, Crowder filed a petition for resentencing pursuant to section 1170.95. The trial court summarily denied Crowder's petition. In the minute order, the court stated the following: "The petition does not set forth a prima facie case for relief under the statute. A review of court records indicates defendant is not eligible for relief under the statute because the defendant does not stand convicted of murder or defendant's murder conviction(s) is not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors." Crowder filed a timely notice of appeal.
DISCUSSION
Section 1170.95, subdivision (a), provides, in relevant part, "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 . . . ." The new statute, enacted as part of Senate Bill No. 1437 (S.B. 1437), modified the law relating to accomplice liability for murder but does not mention the crime of attempted murder.
Arguments have been made the statute should be expanded beyond its wording to include attempted murder, but we are not persuaded. Our colleagues in the Second District recently addressed this issue in People v. Lopez (2019) 38 Cal.App.5th 1087 (Lopez), review granted November 13, 2019, S258175 (Cal. Rules of Court, rule 8.1115(e)(1) [while review pending may rely on for persuasive value] ). The Lopez court concluded S.B. 1437 excluded any relief for individuals convicted of attempted murder. (Lopez, supra, 38 Cal.App.5th at p. 1104.) It noted S.B. 1437's plain language and legislative history supported this conclusion. (Lopez, supra, 38 Cal.App.5th at p. 1105.) In citing S.B. 1437's repeated use of the term "murder" and the absence of the use of the term "attempted murder," the court concluded the Legislature's intention to limit relief to those convicted of the completed crime of murder was clear. (Lopez, supra, 38 Cal.App.5th at pp. 1104-1105.)
We find the Lopez court's reasoning persuasive and conclude the petitioning procedures in section 1170.95 do not apply to attempted murder, the crime of which Crowder stands convicted. We find no error.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.