Opinion
E074532
08-18-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LEONARD DAVIS, Defendant and Appellant.
Anthony Leonard Davis, in pro. per.; and Rachel Ferguson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF086706) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Anthony Leonard Davis, in pro. per.; and Rachel Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted Anthony Leonard Davis of first degree murder, a conviction we affirmed on direct appeal. (People v. Jackson (June 24, 2003) E031070 [nonpub. opn.] (Jackson I); People v. Jackson 2003 Cal.App. Unpub. Lexis 6083.) In 2019, he filed a petition for resentencing under the newly enacted Penal Code section 1170.95. Davis appeals the trial court's denial of his petition, and we affirm because the evidence shows he was convicted of committing the murder himself, which makes him ineligible as a matter of law.
I
FACTS
On June 16, 1999, Davis and three other men planned to rob a fast food restaurant. When they found the restaurant too crowded, they decided instead to rob someone they found filling his car tires outside. One of the men with Davis, Antoine Dupree Jackson, approached the victim, pointed a BB gun at him, and demanded money. The victim ran and a .22-caliber bullet struck him in the back killing him. Davis admitted firing a single shot from his .22-caliber pistol in the air in order to scare the victim. However, at least one witness heard multiple shots, and one of Davis's partners told the police Davis fired multiple shots.
We summarize and take the facts from our nonpublished 2003 opinion affirming Davis's conviction which is part of the record on appeal in this case. (Jackson I, supra, E031070.)
The Riverside County District Attorney charged Davis with first degree murder. (Pen. Code, § 187, subd. (a), unlabeled statutory citations refer to this code.) The information alleged, as a special circumstance, that the murder was committed during a robbery (§ 211, § 190.2, subd. (a)(17)) and Davis personally discharged a firearm, causing injury or death to another person who was not an accomplice (§ 12022.53, subd. (d)).
A jury convicted Davis of first degree murder and found both the special circumstance and the firearm enhancement allegation true. The trial court sentenced him to life without the possibility of parole plus 25 years to life for the firearm enhancement. Davis appealed, and in 2003 this court upheld his conviction. (Jackson I, supra, E031070.)
In August 2019, Davis filed a petition for resentencing under recently enacted section 1170.95. The People argued the true finding on the special circumstance allegation required the jury to find Davis had the intent to kill and acted as a major participant with reckless indifference to human life. The trial court agreed and summarily denied the petition on that basis.
Davis timely appealed.
II
ANALYSIS
On Davis's request, we appointed counsel to represent him on appeal. Counsel filed a brief declaring she found no arguably meritorious issues to appeal, setting out a statement of the case, a summary of the facts and potential arguable issues, and asking us to conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders).
A. Availability of Plenary Review Under Anders/Wende
"[T]he constitutional right to assistance of counsel entitles an indigent defendant to independent review by the Court of Appeal when counsel is unable to identify any arguable issue on appeal." (People v. Kelly (2006) 40 Cal.4th 106, 119.) This type of review—often called Anders/Wende review after Anders, supra, 386 U.S. 738 and Wende, supra, 25 Cal.3d 436—applies only when a defendant has a constitutional right to counsel, which extends only to the first appeal of right. (People v. Kelly, at p. 119; Pennsylvania v. Finley (1987) 481 U.S. 551, 555 (Pennsylvania).) While a criminal defendant has a right to appointed counsel in an appeal from an order after judgment affecting his substantial rights (Pen. Code, §§ 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c)), that right is statutory, not constitutional, and a defendant doesn't have a right to Wende review in such an appeal. (In re Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537 (Ben C.); Pennsylvania, at pp. 555-556.) Denial of a petition under section 1170.95 is an order after judgment affecting a defendant's substantial rights. (People v. Larios (2019) 42 Cal.App.5th 956, 961.) Therefore, Davis is not entitled to Anders/Wende review in this appeal.
Where appointed counsel on appeal is unable to identify an arguable issue, and a defendant does not have a right to Anders/Wende review, counsel should "(1) inform the court he or she has found no arguable issues to be pursued on appeal; and (2) file a brief setting out the applicable facts and the law. Such a brief will provide an adequate basis for the court to dismiss the appeal on its own motion. Upon receipt of the brief from counsel, the court will inform defendant of his right to file a supplemental brief. The court will then either retain the appeal or dismiss it on our own motion." (People v. Serrano (2012) 211 Cal.App.4th 496, 503.) If the defendant files a supplemental brief, we may address the issues raised, but need not conduct a full independent Anders/Wende review of the record to identify viable issues defendant did not raise. If the defendant doesn't file a supplemental brief, we may dismiss the appeal as abandoned. (People v. Serrano, at pp. 503-504; see Ben C., supra, 40 Cal.4th at p. 544.)
Here, after appellate counsel filed a brief notifying us Davis's appeal presents no arguable issues, we offered Davis an opportunity to file a personal supplemental brief, and he has done so. We will therefore address his arguments.
B. Davis's Arguments Concerning Errors at His Trial
Davis argues the prosecution engaged in misconduct at his trial by impermissibly inflaming the jury's ire, cajoling them to "avenge" the victim, and generally alluding to the overall ends of justice in a way that suggested the jury could serve these ends by convicting Davis. Davis also makes a number of other arguments, including the trial court gave erroneous jury instructions and he received ineffective assistance of counsel.
Our decision in the appeal of his conviction explicitly rejected Davis's prosecutorial misconduct and instructional error claims. (Jackson I, supra, E031070; People v. Jackson 2003 Cal.App. Unpub. Lexis 6083 at pp. 21-30, 34-45.) He cannot relitigate those issues in a second appeal. To the extent Davis raises new issues concerning errors in his trial, Davis has waived them by failing to raise them in the original appeal of his conviction. (People v. Senior (1995) 33 Cal.App.4th 531, 538 [holding that a claim of error can be waived where "(1) the issue was ripe for decision by the appellate court at the time of the previous appeal; (2) there has been no significant change in the underlying facts or applicable law; and (3) the defendant has offered no reasonable justification for the delay."].)
C. Eligibility for Relief under Section 1170.95
Turning to section 1170.95, Davis doesn't specifically articulate what makes him eligible for relief. He does argue there was insufficient or contradictory evidence that he participated in robbing the victim or was the actual killer. However, we conclude the evidence and verdict demonstrate Davis was convicted as the actual killer, and therefore is not entitled to relief under section 1170.95.
In 2018, the Legislature enacted Senate Bill No. 1437 (Senate Bill 1437), which amended the definition of felony murder in section 189 and eliminated liability for murder under a natural and probable consequences theory. Under the new law, "[a] participant in the perpetration or attempted perpetration of a felony . . . in which a death occurs is liable for murder only if," they were the actual killer, "[t]he 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," or "[t]he person was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e)(1)-(3).) Senate Bill 1437 also added section 1170.95, which allows "[a] person convicted of felony murder or murder under a natural and probable consequences theory," to "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." (§ 1170.95, subd. (a); Stats. 2018, ch. 1015, § 4.)
Here, the record shows Davis does not fall within the provisions of section 1170.95 because he was the actual killer. The victim was struck and killed with a .22-caliber bullet. Davis admitted to carrying a gun that fired .22-caliber bullets, he admitted firing it once, a robbery partner said he fired the gun several times, and the jury found he personally discharged a firearm and caused injury or death. (Jackson I, supra, E031070; People v. Jackson 2003 Cal.App. Unpub. Lexis 6083 at pp. 7-10.) The evidence also indicates no one else fired .22-caliber bullets, and Jackson carried only a BB gun. Thus, the jury's verdict and the evidence make clear Davis was the actual killer.
Since section 1170.95 does not offer relief to actual killers, regardless of the theory of guilt, Davis isn't eligible for relief as a matter of law.
III
DISPOSITION
We affirm the order denying Davis's petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MENETREZ
J.