From Casetext: Smarter Legal Research

People v. Griffin

California Court of Appeals, Third District, Sacramento
Aug 30, 2023
No. C097902 (Cal. Ct. App. Aug. 30, 2023)

Opinion

C097902

08-30-2023

THE PEOPLE, Plaintiff and Respondent, v. CHARLES EDWARD GRIFFIN II, Defendant and Appellant.


NOT TO BE PUBLISHED

Super. Ct. No. CR115423

RENNER, J.

Defendant Charles Edward Griffin II appeals the trial court's denial of his petition for resentencing under Penal Code section 1172.6. Counsel filed a brief raising no arguable issues under People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Counsel requested we exercise our discretion to review the entire record for arguable issues on appeal. Defendant has filed a supplemental brief. We shall affirm.

Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Defendant filed his petition under former section 1170.95, but we will cite to section 1172.6 throughout this opinion. Undesignated statutory references are to the Penal Code.

I. BACKGROUND

In 1993, a jury found defendant guilty of attempted murder (§ 664/187), shooting at an occupied vehicle (§ 246), and being a felon in possession of a firearm (former § 12021). (People v. Griffin (Apr. 26, 1994, C016151) [nonpub. opn.] (Griffin).) The jury further found the attempted murder was deliberate and premeditated (§ 189), defendant inflicted great bodily injury (§ 12022.7), and defendant used a firearm (§ 12022.5, subd. (a)). (Griffin, supra, C016151.) The court sentenced defendant to a term of life with the possibility of parole, plus 17 years. (Ibid.) A different panel of this court affirmed the judgment. (Ibid.)

Defendant and the victim "quarreled over a narcotics transaction. Defendant lay in wait for the victim and as the victim drove by, fired at him twice with a shotgun, severely wounding him." (Griffin, supra, C016151.)

Defendant filed his first petition for resentencing under section 1172.6 in September 2019. (See People v. Griffin (June 28, 2022, C090893) [nonpub. opn.].) In that case, which we have incorporated into this case on defendant's motion, the record included the complete jury instructions given at defendant's original jury trial showing that the trial court did not instruct the jury on felony murder or the natural and probable consequences doctrine. In this court's prior decision, another panel concluded defendant was ineligible for relief under section 1172.6 as a matter of law, because the jury was not instructed on either theory. (People v. Griffin, supra, C090893.)

On January 18, 2022, defendant filed a second petition for resentencing under section 1172.6 to have his murder conviction vacated and to be resentenced asserting he "could not presently be convicted of murder or attempted murder because of changes made to [] §§ 188 and 189, effective January 1, 2019." Following the appointment of counsel, and receipt of briefing, the trial court denied the second petition finding the "jury in defendant's trial was never instructed on natural and probable consequences or any other imputed liability theory."

II. DISCUSSION

In Wende, our Supreme Court held that "Courts of Appeal must conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal which raises no specific issues or describes the appeal as frivolous." (Delgadillo, supra, 14 Cal.5th at p. 221.) The Wende procedure applies "to the first appeal as of right and is compelled by the constitutional right to counsel under the Fourteenth Amendment of the United States Constitution." (Ibid.)

In Delgadillo, our Supreme Court held that Wende independent review is not constitutionally required in an appeal from a postconviction order denying a section 1172.6 petition for resentencing, because the denial does not implicate a defendant's constitutional right to counsel in a first appeal as of right. (Delgadillo, supra, 14 Cal.5th at pp. 222, 224-225.) The court further found that general due process principles regarding fundamental fairness did not compel a Wende independent review of the order. (Id. at pp. 229-232.)

The Delgadillo court prescribed guidance for considering an appeal from an order denying a section 1172.6 petition where counsel finds no arguable issues to be pursued on appeal. (Delgadillo, supra, 14 Cal.5th at p. 232.) When a defendant has been notified that his appeal of the postconviction order may be dismissed, the reviewing court must evaluate the specific arguments presented in any supplemental brief the defendant files. (Ibid.) The filing of a supplemental brief, however, "does not compel an independent review of the entire record to identify unraised issues." (Ibid.)

On May 16, 2023, we notified defendant: (1) counsel had filed a brief indicating no arguable issues had been identified by counsel; (2) as a case arising from an order denying postconviction relief, defendant was not entitled to counsel or to an independent review of the record; and (3) in accordance with the procedures set forth in Delgadillo, defendant had 30 days in which to file a supplemental brief or letter raising any argument he wanted this court to consider. In addition, we notified defendant if we did not receive a letter or brief within that 30-day period, the court may dismiss the appeal as abandoned.

Defendant filed a supplemental brief conceding "it may be true, that [defendant] doesn't fit the criteria prescribed pursuant to the changes" to section 1172.6. Nonetheless, he argues he is serving an unauthorized sentence because he was charged with and pled not guilty to attempted murder (§§ 664/187, subd. (a)), but was tried, found guilty of, and sentenced for deliberate and premeditated attempted murder under a theory of lying in wait. (§§ 664/187, 189.) In his original appeal from the verdict, defendant argued his conviction should be reversed on this basis and another panel of this court affirmed his conviction concluding the prosecutor's failure to plead the section 189 allegations in the complaint was harmless error. (Griffin, supra, C016151.) That judgment is long since final. (In re Spencer (1965) 63 Cal.2d 400, 405 [conviction final when "courts can no longer provide a remedy to a defendant on direct review"]; Cal. Rules of Court, rule 8.366 [a Court of Appeal decision in a criminal case is final in that court 30 days after filing].) Under the doctrine of law of the case, a party may not seek appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances. (People v. Boyer (2006) 38 Cal.4th 412, 441, superseded by statute on other grounds.) We find no compelling change in circumstances here that would justify reconsidering such issues. Furthermore, defendant's arguments are unauthorized collateral attacks on the judgment outside the purview of a section 1172.6 petition. They are not cognizable on appeal from an order denying relief under that statute. (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"].)

III. DISPOSITION

The trial court's postjudgment order denying defendant's section 1172.6 petition is affirmed.

We concur: ROBIE, Acting P. J., KRAUSE, J.


Summaries of

People v. Griffin

California Court of Appeals, Third District, Sacramento
Aug 30, 2023
No. C097902 (Cal. Ct. App. Aug. 30, 2023)
Case details for

People v. Griffin

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHARLES EDWARD GRIFFIN II…

Court:California Court of Appeals, Third District, Sacramento

Date published: Aug 30, 2023

Citations

No. C097902 (Cal. Ct. App. Aug. 30, 2023)