Opinion
B336046
09-30-2024
THE PEOPLE, Plaintiff and Respondent, v. DARRELL JUNIOR CUTRER, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal; Darrell Cutrer, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of Los Angeles County, No. NA111884 Richard M. Goul, Judge. Affirmed.
Allen G. Weinberg, under appointment by the Court of Appeal; Darrell Cutrer, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
STONE, J.
On March 2, 2020, Darrell Junior Cutrer pleaded no contest to a single count of voluntary manslaughter (Pen. Code, § 192, subd. (a)) and two counts of second-degree robbery (§ 211). On August 15, 2022, Cutrer filed a petition for resentencing under section 1172.6 (former § 1170.95). After conducting an evidentiary hearing, the trial court denied the petition.
All statutory references are to the Penal Code.
No arguable issues have been identified following review of the record by Cutrer's appointed appellate counsel. We also have identified no arguable issues after our own independent review of the record and analysis of the contentions presented by Cutrer in his supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the preliminary hearing transcript, on which the trial court relied at the evidentiary hearing under section 1172.6.
1. Robbery of Victim Dukes Leading to His Death
On May 6, 2019, Cutrer and one of his codefendants, Michael Rowe, gave the victim, Derek Dukes, $550 so that Dukes could set up a T-Mobile account and buy a cellphone as part of a purchase and resale scheme hatched by Cutrer and his codefendants Rowe and Kalaza Easterling.
After Cutrer, Rowe, and Easterling dropped Dukes off at the T-Mobile store, Dukes ran off with the money. However, a bit later Cutrer and his codefendants encountered Dukes on a sidewalk along a busy street. Cutrer and his codefendants confronted Dukes, and Rowe asked Dukes where the money was. Dukes responded he did not have it any longer. Rowe punched Dukes, and then Cutrer put Dukes in a chokehold and held him down while Rowe searched Duke's backpack and took items from his pockets, including about $40 and Duke's cellphone. Surveillance video showed Dukes initially struggled but then eventually went limp and may have lost consciousness. Cutrer then let Dukes go and stood him up, and Dukes proceeded to stumble around. Dukes tried to leave, but Cutrer continued to verbally confront Dukes about the missing money, before walking away. Approximately two to two and a half minutes after Cutrer walked off, Rowe again punched Dukes, who fell to the ground. Dukes then stood up, appearing to be disoriented, and ran into the street where he was hit by a fast-moving car.
Dukes was transported to the hospital and never regained consciousness before dying from his injuries several months later. The cause of death was determined to be multiple traumatic injuries from being struck by a car.
2. Charges, Preliminary Hearing, and Plea
Cutrer was charged by an information filed on October 16, 2019 with murder (count 4; § 187, subd. (a)), second-degree robbery as to victim Dukes (count 1; § 211), assault by means likely to produce great bodily injury (count 3; § 245, subd. (a)(4)), and second-degree robbery as to another victim Raymond Santiago (count 5; § 211), with special allegations as to counts 1 and 3 that Cutrer personally inflicted great bodily injury on Dukes (§ 12022.7, subd. (a)).
At the preliminary hearing, the prosecution announced at the outset that as to the murder charge it was proceeding under section 189, subdivision (e)(3), i.e., a felony-murder theory under which Cutrer was a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e)(3).) The prosecution focused in large part on Cutrer's actions in placing Dukes in a chokehold. Cutrer was held to answer on the murder count as well as all other counts.
On March 2, 2020, the information was amended by interlineation to add a count for voluntary manslaughter (§ 192, subd. (a)). That same day, Cutrer pleaded no contest to one count of voluntary manslaughter and two counts of second-degree robbery. On March 17, 2020, the trial court sentenced Cutrer to an aggregate term of 13 years: 11 years for the manslaughter (the upper term), one year for the robbery as to victim Dukes (one-third the middle term), and one year for the robbery as to victim Santiago (one-third the middle term). Cutrer did not appeal from the judgment.
The information originally charged Cutrer with two counts of second-degree robbery, assault by means of force likely to produce great bodily injury, and murder.
3. Cutrer's Petition for Resentencing
On August 15, 2022, Cutrer, representing himself, filed a form petition for resentencing pursuant to section 1172.6. The court appointed counsel for Cutrer, and ultimately concluded Cutrer had met his prima facie burden and thus set an evidentiary hearing under section 1172.6.
At the evidentiary hearing on November 29, 2023, the court indicated it had read Cutrer's petition, the People's opposition, and the preliminary hearing transcript, and had reviewed the preliminary hearing exhibits (including a videotape of the assault). Following oral argument, the superior court denied the petition. The trial court found "beyond a reasonable doubt that the defendant is guilty of voluntary manslaughter under a still valid theory of homicide. The court finds further that this was a plea negotiation down to voluntary manslaughter and finds beyond a reasonable doubt that the defendant was guilty of murder. [¶] And the basis for that finding is that he is guilty beyond a reasonable doubt under a still viable theory of homicide that he was a major participant in the underlying felony of robbery and acted with reckless indifference to human life."
Cutrer filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent Cutrer on appeal from the denial of his postjudgment petition. After reviewing the record, appointed counsel did not identify any arguable issues and so informed this court. Appointed counsel advised Cutrer that he was filing a brief stating he was unable to find arguable issues and that Cutrer could personally submit any contentions he believed the court should consider. Counsel also sent Cutrer a copy of the brief as well as the record on appeal.
On July 17, 2024 we received a seven-page handwritten supplemental brief from Cutrer. Cutrer claims he "never robbed anybody"; that he was trying to prevent the fight between Rowe and Dukes; that he left "2 or 3 minutes" before the second altercation between Rowe and Dukes; and that video evidence shows he was not a "major participant." He also claims that he took the plea agreement only because his counsel was not adequately representing him, and that the plea deal led him to "believe that since I took a deal . . . I should have never been charged with 'felony murder.' "
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) Statute 2018, chapter 1015, section 3, eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule by adding section 189, subdivision (e). (People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848; see People v. Reyes (2023) 14 Cal.5th 981, 984.) Under section 189, subdivision (e), "[a] participant in the perpetration or attempted perpetration of a [specified felony] in which a death occurs 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." (§ 189, subd. (e).) Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) Statute 2021, chapter 551, section 1, subdivision (a), clarified that, in some circumstances, the same relief available to persons convicted of murder is also available to persons convicted of attempted murder or manslaughter. (§ 1172.6, subd. (a); People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18.)
Under section 1172.6, a petitioner may seek resentencing on his or her murder, attempted murder, or manslaughter conviction when "all of the following conditions apply: (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine[;] (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder[; and] (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a); see People v. Strong, supra, 13 Cal.5th at p. 708; People v. Arreguin (2023) 89 Cal.App.5th 58, 62.) On appeal from an order denying a petition under section 1172.6, we apply the substantial evidence standard of review. (People v. Montanez (2023) 91 Cal.App.5th 245, 270; People v. Guiffreda (2023) 87 Cal.App.5th 112, 125.)
Cutrer is ineligible for relief under section 1172.6 as a matter of law. The information that charged Cutrer with murder was filed on October 16, 2019, after the limitations to felony murder liability and elimination of the natural and probable consequences doctrine as to murder were already in force. Thus, the record of conviction conclusively establishes Cutrer cannot satisfy the requirement of section 1172.6, subdivision (a)(1), that the complaint or information filed against him "allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine." (§ 1172.6, subd. (a)(1).) In addition, Cutrer is ineligible as a matter of law because he "pled [no contest] to voluntary manslaughter at a time when imputed malice theories had already been statutorily eliminated," and thus cannot show that he" 'could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019'" within the meaning of section 1172.6, subdivision (a)(3). (People v. Lezama (2024) 101 Cal.App.5th 583, 590; accord, People v. Gallagos (Sept. 25, 2024, F086151)___ Cal.App.5th___ .)
In addition, we may not consider Cutrer's allegations disputing the sufficiency of the evidence supporting his underlying conviction, because section 1172.6 does not allow a petitioner to raise arguments that are not based on changes made by Senate Bill No. 1437. (See People v. Burns (2023) 95 Cal.App.5th 862, 865 ["Section 1172.6 does not create a right to a second appeal."].) "The mere filing of a section [1172.6] petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings." (People v. Farfan (2021) 71 Cal.App.5th 942, 947; accord, People v. Bratton (2023) 95 Cal.App.5th 1100, 1127.) Similarly, Cutrer may not advance a claim that he received ineffective assistance of trial counsel in a section 1172.6 petition. (See People v. Soriano (1987) 194 Cal.App.3d 1470, 1477 [a claim of ineffective assistance of counsel must be raised on direct appeal or through a petition for writ of habeas corpus].)
Because no cognizable legal issues have been raised by Cutrer's appellate counsel or by Cutrer, and our independent review of the record confirms Cutrer is not entitled to any relief under section 1172.6, the order denying his petition for resentencing is affirmed. (See People v. Delgadillo (2022) 14 Cal.5th 216, 231-233; see generally People v. Kelly (2006) 40 Cal.4th 106, 118-119.)
DISPOSITION
The postjudgment order denying Cutrer's section 1172.6 petition is affirmed.
WE CONCUR: SEGAL, ACTING P. J., FEUER, J.