Opinion
E083305
12-16-2024
THE PEOPLE, Plaintiff and Respondent, v. JAMES EUSSE, JR., Defendant and Appellant.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County RIF090749. John D. Molloy, Judge.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
Defendant and appellant James Eusse, Jr. appeals the trial court's postjudgment order denying his petition for resentencing of his first degree murder conviction (Pen. Code, § 187, subd. (a)) under section 1172.6 (formerly § 1170.95). Appointed counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), requesting this court to conduct an independent review of the record. In addition, defendant has had an opportunity to file a supplemental brief with this court and has not done so. Because defendant's counsel filed a brief raising no issues and defendant was notified that failure to timely file a supplemental brief may result in the dismissal of the appeal as abandoned and was given an opportunity to file a personal supplemental brief but failed to do so, we dismiss the appeal as abandoned. (Id. at pp. 231-232.)
All future statutory references are to the Penal Code.
A summary of the background is taken from this court's nonpublished opinion in defendant's direct appeal, case No. E034053. (People v. Eusse (Nov. 30, 2004, E034053) [nonpub. opn.] (Eusse I).) The factual background will be limited to counts 1 and 2. Facts relating to count 3 will be omitted as they relate to a separate carjacking incident that occurred several hours before the murder. (See Ibid.)
On June 22, 1999, brothers Akram and Vincent Gadalla went out to a club in Vincent's red Honda Prelude, which had expensive new rims on it. When the brothers were returning to Vincent's apartment around 3:00 or 3:30 a.m., they exited the 91 Freeway at Van Buren in Riverside. As they waited for a light to change, a pickup truck with a camper shell or a sports utility vehicle (SUV) approached them from the left lane and moved ahead of Vincent's car, blocking it. (Eusse I, supra, E034053.)
Defendant jumped out of the passenger side of the truck, holding a gun in his right hand, and ran toward Vincent's car. While defendant ran toward the Prelude, Vincent threw the car in reverse and backed it up. Pointing the gun at the Prelude, defendant exclaimed, "Get out of the car now." (Eusse I, supra, E034053.)
Responding to defendant's command, Vincent put the car into first gear. As the Prelude began to move forward, Akram heard the sound of a gunshot. Vincent then exclaimed, "I got shot." (Eusse I, supra, E034053.) Akram did not see anyone else get out of the truck or anyone else holding a gun besides defendant. (Ibid.)
Vincent lost consciousness, and Akram was forced to take control of the Prelude. Once he was able to gain control of the car and steer it to safety, Akram ran to get help for Vincent. Vincent never regained consciousness. The gunshot had hit Vincent in the middle of his front chest and penetrated his heart. Vincent died in a matter of minutes. (Eusse I, supra, E034053.)
Akram later identified defendant in a photographic lineup as the man who shot his brother, Vincent. A warrant for defendant's arrest was issued in July 1999. Officers were unable to locate defendant in California because he had moved to Mexico. The warrant for defendant's arrest was outstanding until August 2001, when defendant was finally located and arrested. (Eusse I, supra, E034053.)
A jury convicted defendant of first degree murder (§ 187, subd. (a); count 1), attempted carjacking (§§ 664/ 215, subd. (a); count 2), and carjacking (§ 215, subd. (a); count 3). (Eusse I, supra, E034053.) The jury found true that the murder was committed during the course of an attempted carjacking under section 190.2, subdivision (a)(17), and that defendant personally and intentionally discharged a firearm causing death under sections 12022.53, subdivision (b) and 1192.7, subdivision (c)(8). The trial court declared a mistrial as to count 4 for robbery and ultimately dismissed the count. The trial court sentenced defendant for the aggregate term of life without parole plus 26 years 8 months to life. (Eusse I, supra, E034053.) Defendant's judgment was affirmed on direct appeal, but the case was remanded to the trial court to amend the July 11, 2003, minute order to correctly reflect the sentence for count 2. (See ibid.)
On August 15, 2022, defendant filed a petition for resentencing pursuant to former section 1170.95.
On October 27, 2022, the People filed a request for judicial notice of the complete jury instructions in the matter, all files and records from defendant's trial, and this court's nonpublished opinion on direct appeal, Eusse I, supra, E034053.
Counsel was thereafter appointed for defendant, and on November 16, 2022, defendant's appointed counsel filed a prima facie brief in support of defendant's section 1172.6 petition for resentencing. Several days later, on November 22, 2022, defendant's appointed counsel filed a reply brief pursuant to section 1172.6. This reply brief included the instructions given to the jury at the time of defendant's trial.
On June 13, 2023, defendant's appointed counsel filed a supplemental reply brief pursuant to section 1172.6. This supplemental reply brief included the reporter's transcript of the jury instructions given at trial, as well as the prosecutor's closing argument.
On November 28, 2023, defendant's appointed counsel filed a second supplemental reply brief pursuant to section 1172.6 to address People v. Strong (2022) 13 Cal.5th 698.
On January 16, 2024, defendant filed a petition for recall and resentencing pursuant to Assembly Bill No. 1104 (2023-2024 Reg. Sess.). The trial court summarily denied the petition that same day.
On January 24, 2024, defendant's appointed counsel filed a third supplemental reply brief pursuant to section 1172.6.
A hearing on defendant's section 1172.6 petition was held on February 2 and 16, 2024. On February 16, 2024, defendant was present via video. Following argument and the trial court's review of the instructions given to defendant's jury, the trial court denied the section 1172.6 petition. Without factfinding, the court concluded that defendant had not established a prima facie case of entitlement to relief because the jurors had found defendant was the actual killer. The court noted, "There was an instruction, there was only one path to a true verdict, and that path required him to be the actual slayer." The court further explained, "the record of conviction demonstrates how the jury was instructed. They were instructed on the special in a way that the only way they could find the special true was that he was the actual slayer. [¶] The verdict forms I believe are a part of the record of conviction. They're not underlying facts, they are a part of the record of conviction. The jury instructions are part of the record of conviction. [¶] There was no instruction that runs afoul of the changes in the law that allow them to find that he was the actual killer." Defendant timely appealed from the denial of his petition for resentencing pursuant to Assembly Bill No. 1104 and section 1172.6.
III. DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the authority of Delgadillo, supra, 14 Cal.5th 216, setting forth a statement of the case and a summary of the procedural background. Counsel considered potential issues on appeal but found no specific arguments as grounds for relief, and requests that we exercise our discretion and independently examine the appellate record for any arguable issues.
We offered defendant an opportunity to file a personal supplemental brief. We noted that if he did not do so, we could dismiss the appeal. Nevertheless, defendant has not filed one. Under these circumstances, we have no obligation to independently review the record for error. (Delgadillo, supra, 14 Cal.5th. at pp. 224-231.)
In Delgadillo, supra, 14 Cal.5th 216, the California Supreme Court held that People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) procedures do not apply in appeals from the denial of a section 1172.6 postjudgment petition. (Delgadillo, supra, at pp. 224-227.) Thus, we need not examine the entire record ourselves to look for arguable grounds for reversal. (Id. at p. 228.) Because defendant's counsel filed a brief raising no issues, and defendant was given an opportunity to file a personal supplemental brief but declined, we may dismiss the appeal as abandoned. (Id. at p. 232.) "Independent review in Wende appeals consumes substantial judicial resources," and "[t]he state . . . has an interest in an 'economical and expeditious resolution' of an appeal from a decision that is 'presumptively accurate and just.'" (Id. at p. 229.)
We, however, have discretion to conduct Wende review even when it is not required. (Delgadillo, supra, 14 Cal.5th at p. 232.) This case does not call for us to exercise our discretion to independently examine the record for arguable issues, and we decline to exercise our discretion to independently examine the record. Accordingly, we dismiss the appeal as abandoned. (Delgadillo, supra, 14 Cal.5th at p. 232.)
IV. DISPOSITION
The appeal is dismissed.
We concur: RAMIREZ P. J., MENETREZ J.