Opinion
A158682
03-26-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVEN TERRELL EMBREY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 172305)
Defendant Steven Terrell Embrey appeals from an order denying his petition to recall and vacate his conviction pursuant to Penal Code section 1170.95. His court-appointed counsel has filed a brief raising no issues, and she seeks our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). The brief includes counsel's declaration stating she informed defendant she would be filing a Wende brief on his behalf and provided him a copy of the brief. Because that declaration did not clearly indicate defendant was apprised of his right to file a supplemental brief, we issued an order advising defendant that he could do so no later than March 13, 2010.
All further statutory references to this code unless otherwise specified.
Thereafter, we received a supplemental declaration from defense counsel which, in sum, indicates defendant instructed her to file additional exhibits and to inform the court of defendant's desire to challenge his underlying attempted murder conviction on the ground that he did not voluntarily and intelligently enter the plea due to medications he was taking at the time of the plea. The exhibits filed by counsel show the medications defendant was taking at various times before and after his plea, and the effects of certain medications.
Having independently reviewed the record, we conclude there are no reasonably arguable issues requiring further review. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, defendant was convicted by plea of attempted murder (§§ 664, subd. (a)/187), two counts of attempted robbery (§§ 664/211), two counts of shooting at an occupied vehicle (§ 246), and assault with a semiautomatic firearm (§ 245, subd. (b)). Defendant admitted to personally and intentionally discharging a firearm (§ 12022.53, subd. (c)) during the commission of the attempted murder and attempted robberies. He also admitted personally and intentionally discharging a firearm (§ 12022.53, subd. (c)) and causing great bodily injury (paralysis) (§ 12022.7, subd. (b)) during the commission of the assault with the firearm. He was sentenced to a total of 50 years in prison. The following is a brief summary of the underlying offenses as set out in the probation report.
In July 2011, defendant—dressed in body armor and armed with a Glock and an extended magazine—went on a robbery and shooting spree from about 8:30 p.m. to 11:00 p.m. in Oakland. This crime spree resulted in four different crime scenes and multiple victims, four of whom were actually shot by defendant, one of whom was paralyzed.
Defendant accosted the first victim on the street, demanding money. When the victim refused, defendant shot at him multiple times, hitting him in the thigh and foot, fracturing his ankle. The second victim was in a nearby parked car when he heard several shots, and his back window shattered.
About an hour later, defendant walked up to a witness on the street, showed him his gun, and laughingly told him he had just shot and killed someone. Within minutes, the third victim drove by and stopped to speak with the witness. The victim did not know defendant, and refused when defendant demanded the victim give him a ride. Defendant then demanded the victim's possessions at gunpoint. As the victim reached into his pocket to give defendant his money, defendant shot him in his abdomen. The victim fell and defendant stood over him, pointing the gun directly at his head before the witness intervened and stopped him from pulling the trigger. The victim heard the witness ask defendant, "What are you doing?" and heard defendant respond, "That little nigga wouldn't give me no ride." The victim underwent emergency surgery, but the bullet is still lodged near his spine. The victim was discharged with a colostomy bag for three to six months, was wheelchair bound for a time, and regained the ability to walk unassisted, at least for certain distances.
Shortly after he shot the third victim, defendant arrived at a hotel by car. He appeared to speak to two women in front of the hotel who then frantically entered the hotel and ran up the stairs before defendant pulled out his gun and fired shots into the stairwell in their direction. Defendant then made eye contact with the fourth victim who was at a neighboring hotel. Defendant approached the victim with his gun drawn and tried to rob him. Discovering he had nothing, defendant walked away, but then casually turned back toward the victim and shot him. The victim suffered a fracture to his thigh and had to use a walker for several months.
Finally, about 50 minutes later, another victim was dropping a friend off at a home in Oakland when he saw three men approaching his car, one of whom was defendant. The victim saw defendant pull out a gun and heard him say, "I'm about to rack up on this." The victim tried to drive away quickly, but heard gunshots and was hit in the back, causing him to lose feeling in his legs and crash the car. The victim was paralyzed from the knee down.
In September 2019, nearly six years after he was sentenced for these crimes, defendant filed a petition for resentencing pursuant to recently enacted section 1170.95. In his petition, defendant incorrectly claimed he pled and was convicted of second degree murder (in fact, he was not convicted of any homicide) and argued he was entitled to resentencing pursuant to section 1170.95. The trial court denied the petition, finding relief under section 1170.95 unavailable to defendant who was not convicted of a completed homicide offense. The trial court correctly determined that defendant was convicted of attempted murder, but found that the resentencing provisions of section 1170.95 inapplicable to attempted murder convictions. The court further found that even if section 1170.95 applied to attempted murder, relief would still be unavailable as there was no indication defendant was prosecuted under a felony-murder theory or a natural and probable consequences aider and abettor theory.
DISCUSSION
We begin by questioning the applicability of Wende procedures to an appeal from the denial of a petition for resentencing pursuant to section 1170.95. Anders v. California (1967) 386 U.S. 738 (Anders) and Wende were concerned with a criminal defendant's first appeal from conviction. (Anders, at p. 739 ["We are here concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction"]; Wende, supra, 25 Cal.3d at pp. 438, 441; In re Sade C. (1996) 13 Cal.4th 952, 980 (Sade C.).) This is not an appeal from a criminal conviction.
Defendant cites no authority recognizing an independent due process right to a Wende review in this particular context, and presents no argument why we should relieve him of the burden of putting forward his own issues on appeal for testing through the normal adversarial process. (See, e.g., Sade C., supra, 13 Cal.4th at pp. 987-991.) Defendant cites three cases where the courts conducted Wende reviews in appeals from denials of resentencing petitions pursuant to Proposition 47 (section 1170.18), but none of them addresses whether a Wende review is required in such a situation.
That said, rather than dismiss the appeal (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 8 [reviewing courts have the power and discretion to sua sponte dismiss an appeal raising no issues as abandoned]), we exercise our discretion to review the record independently as requested and find no arguable issue.
Section 1170.95 was enacted as part of Senate Bill No. 1437 (SB 1437), which "amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) SB 1437 accomplished this through amendments to sections 188 and 189. (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
Specifically, SB 1437 amended the definition of "malice" in section 188 to read: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) SB 1437 also amended the felony murder rule in section 189 to provide that a participant in the perpetration or attempted perpetration of an enumerated felony resulting in death 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); Stats. 2018, ch. 1015, § 3.)
Further, SB 1437 added section 1170.95, which allows defendants convicted of murder to seek retroactive relief if SB 1437's changes in the law would affect their previously sustained convictions. As relevant here, section 1170.95 provides that "[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 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 or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, italics added.)
Initially, we observe case law recognizes that section 1170.95, by its plain terms, applies only to murder convictions. (People v. Cervantes (2020) 44 Cal.App.5th 884, 886-887; People v. Flores (2020) 44 Cal.App.5th 985, 993.) Defendant gives us no basis to question the soundness of these decisions. Applying Cervantes and Flores, we conclude that defendant—who was not convicted of murder but only (as relevant here) attempted murder—cannot establish a prima facie case for relief under section 1170.95.
We note the Supreme Court has granted review to specifically address whether SB 1437 "appl[ies] to attempted murder liability under the natural and probable consequences doctrine." (People v. Lopez (2019) 38 Cal.App.5th 1087, review granted Nov. 13, 2019, S258175; People v. Munoz (2019) 39 Cal.App.5th 738, review granted Nov. 26, 2019, S258234.) --------
But even assuming arguendo that section 1170.95 applies to attempted murder, defendant fails to show he could not now be convicted because of the changes SB 1437 made to sections 188 or 189. The trial court found defendant was the actual perpetrator of the attempted murder, and there is no indication he was prosecuted under a felony-murder theory or a natural and probable consequences theory. Defendant does not contest this, and nothing in the record supports a contrary conclusion. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown' "].) The exhibits defendant has provided in his supplemental brief and his attendant argument that he did not voluntarily and intelligently enter his plea, even if considered, are simply not relevant to the issue presented by his petition to the trial court, i.e., whether SB 1437 affords defendant a basis for relief. Ultimately, defendant fails to establish a prima facie case for relief under section 1170.95. For the reasons stated, we affirm the order denying defendant's resentencing petition.
DISPOSITION
The order denying the petition for resentencing pursuant to section 1170.95 is affirmed.
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Jackson, J.