Opinion
B330021
03-06-2024
THE PEOPLE, Plaintiff and Respondent, v. WAYNE DINSMORE GRAY, Defendant and Appellant.
NOT TO BE PUBLISHED
(Los Angeles County Super. Ct. No. BA417246)
THE COURT:
Defendant and appellant Wayne Dinsmore Gray appeals from the trial court order denying his petition for resentencing under Penal Code section 1172.6 (former § 1170.95).
All further statutory references are to the Penal Code unless otherwise indicated.
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) For simplicity, we refer to the section by its new numbering.
Defendant's appointed counsel found no arguable issues and filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216. Thereafter, defendant filed a supplemental brief. Under the standard articulated in Delgadillo, we decline counsel's invitation to undertake an independent review of the record. Instead, we evaluate the arguments that defendant raises in his supplemental brief. (Delgadillo, supra, at pp. 231-232.) Finding none of the arguments meritorious, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Conviction and Sentence
In 2017, defendant was convicted of three counts of first degree murder. (§ 187, subd. (a).) The jury also found that defendant discharged a firearm in committing the offenses (§ 12022.53, subd. (d)) and that the crimes were committed in association with, or for the benefit of, a criminal street gang (§ 186.22, subd. (b)(1)(C)). And, the jury found true special circumstances allegations of lying in wait and multiple murders. (§ 190.2, subd. (a).) The trial court sentenced defendant to two consecutive terms of life without the possibility of parole plus 100 years to life in state prison, including three 25-year enhancements that were imposed under section 12022.53, subdivision (d).
On direct appeal, we affirmed the judgment. (People v. Gray (Jan. 15, 2019, B281933) [nonpub. opn.].)
II. Petition for Resentencing
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.) in order to "amend 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).) "A person convicted of felony murder or 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 . . . 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 certain conditions apply. (§ 1172.6, subd. (a).)
In 2023, defendant filed a petition for resentencing pursuant to section 1172.6. He argued that he could not, under present law, be convicted because of recent changes addressing liability for murder. The prosecution filed an opposition, arguing that because defendant was the actual shooter and not convicted under either the felony murder rule or the natural and probable consequences doctrine, he was ineligible for resentencing relief.
Following a hearing, the trial court determined that defendant had not made a prima facie showing for relief, and denied the petition on the grounds that defendant was the actual perpetrator and the jury was not instructed on any theory of imputed liability for murder.
Defendant timely filed a notice of appeal.
Defendant's appointed counsel filed a brief pursuant to Delgadillo, supra, 15 Cal.5th at page 231 raising no issues.
On January 25, 2024, defendant filed a supplemental brief. In his brief, he (1) notes that a codefendant took a plea deal, (2) challenges certain evidence, (3) argues that other evidence (and a lack of other evidence) proves his innocence, (4) asserts that the jury was instructed pursuant to the natural and probable consequences doctrine, and (5) contends that he was denied effective assistance of counsel, both at trial and on appeal. Each argument lacks merit.
First, the fact that a codefendant accepted a plea offer has no bearing on whether defendant is entitled to be resentenced under section 1172.6.
Second, defendant may not use the procedures set forth in section 1172.6 to relitigate his conviction or the underlying trial. "'The purpose of [section 1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.'" (People v. Farfan (2021) 71 Cal.App.5th 942, 947; see also People v. Coley (2022) 77 Cal.App.5th 539, 549 [a section 1172.6 petition "is not a means by which a defendant can relitigate issues already decided"]; People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [section 1172.6 "does not permit a petitioner to establish eligibility on the basis of alleged trial error"].) To the extent defendant's current contentions seek to relitigate the evidence from his 2017 jury trial that have no bearing on section 1172.6 relief, we decline to consider them at this juncture.
Third, we have reviewed the appellate record and the jury was not instructed pursuant to the natural and probable consequences doctrine. While the trial court did use that language when giving the jury CALCRIM No. 520, the jury was not instructed on the doctrine of natural and probable consequences. Rather, the jury was instructed on murder under two theories: (1) deliberation and premeditation, and (2) lying in wait. Under these circumstances, the record of conviction demonstrates that the jury did not convict defendant under a now invalid theory of murder. (People v. Harden (2022) 81 Cal.App.5th 45, 52 ["if the record shows that the jury was not instructed on either the natural and probable consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a matter of law"].)
Finally, defendant directs us to no evidence or any portion of the appellate record that supports his assertion that "[e]very lawyer appointed to me in this case was ineffective." (People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [arguments that "are bereft of factual underpinning, record references, argument, and/or authority" require no discussion]; see also People v. Stanley (1995) 10 Cal.4th 764, 793.) Appellate counsel's filing of a Delgadillo brief does not violate either the United States or California Constitution and does not constitute ineffective assistance of counsel. (People v. Kelly (2006) 40 Cal.4th 106, 119.) Furthermore, defendant has not demonstrated any prejudice based upon his claim of defective representation by counsel. (Strickland v. Washington (1984) 466 U.S. 668, 697; see also In re Crew (2011) 52 Cal.4th 126, 150.)
In fact, in his entire supplemental brief, defendant does not provide us with any record citations to any of his assertions whatsoever. He also neglects to support his contentions with any legal authority.
DISPOSITION
The order is affirmed.
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.