Opinion
D082800
08-08-2024
THE PEOPLE, Plaintiff and Respondent, v. GRADY HARRIS, Defendant and Appellant.
Grady Harris, in pro. per.; and Joseph Doyle, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SCD154530, Polly H. Shamoon, Judge. Affirmed.
Grady Harris, in pro. per.; and Joseph Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
HUFFMAN, ACTING P. J.
In 2004, a jury convicted Grady Harris of attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 2), robbery (§ 211; count 3), two counts of attempted robbery (§§ 211, 664; counts 4 &5), and two counts of assault with a semi-automatic firearm (§§ 245, subd. (b); counts 6 &7). The jury also found true allegations Harris had intentionally and personally discharged a firearm within the meaning of section 12022.53, subdivision (c) and had intentionally and personally discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivision (d) during the commission of the attempted murder and robbery (counts 2-5); had personally inflicted great bodily injury upon a person not an accomplice to the offenses within the meaning of section 12022.7, subdivision (a) during the commission of counts 2, 3, 4, 6 and 7; and had personally used a firearm within the meaning of section 12022.5, subdivision (a)(1) during the commission of the assaults (counts 6 &7). The jury found Harris not guilty of the count 1 charged attempted murder.
All statutory references are to the Penal Code unless otherwise specified.
The trial court subsequently found true that Harris had sustained two prior felony convictions which constituted probation denial priors (§ 1203, subd. (e)(4)) and had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1) which also constituted a prior strike conviction under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12).
The court sentenced Harris in this case as a second strike offender to a total prison term of 101 years and four months to life (26 years, 4 months plus an additional term of 75 years to life), consisting of an upper term of 18 years (9 years doubled) for the count 2 attempted murder, a consecutive one-third the midterm of two years (1 year doubled) for the count 3 robbery, a consecutive one-third the midterm of one year, four months (8 months doubled) for the count 5 attempted robbery, three consecutive 25-year-to-life terms for each of the section 12022.53, subdivision (d) firearm enhancements on counts 2, 3 and 5, and a five-year term for the serious felony prior conviction. The court stayed the sentences for counts 4, 6 and 7. The court also sentenced Harris on two unrelated felony cases for which he had been on probation at the time of these instant offenses for an additional two years.
Harris appealed and this court affirmed the convictions, but remanded the case for resentencing in an unpublished opinion. (People v. Harris (July 15, 2005, D044208).)
On remand, the trial court imposed the original sentence. Harris again appealed and this court affirmed the judgment in an unpublished opinion. (People v. Harris (July 9, 2007, D048455).)
In 2022, Harris filed a petition for resentencing under section 1172.6. The court appointed counsel, received briefing, reviewed the record of conviction, and held a hearing.
The court determined Harris was the actual shooter and that the jury had not been instructed to determine his liability based on principles of felony murder or natural and probable consequences. The court concluded Harris had not established a prima facie case for relief under section 1172.6 and therefore denied the petition without first issuing an order to show cause or holding an evidentiary hearing.
Harris filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) indicating counsel has not been able to identify any potentially meritorious issues for reversal on appeal. Counsel requests this court exercise its discretion to independently review the record under the procedure established in People v. Wende (1979) 25 Cal.3d 436.
Harris was advised he could submit his own brief on appeal. He has filed a document in which he asserts he is eligible for relief in part on instruction that applied to the codefendant, who was not the person who intentionally discharged a firearm causing great bodily injury. Harris attached a copy of appellate counsel's brief as an exhibit.
On this record, Harris has not raised any potentially meritorious issues for reversal on appeal.
We will not include a statement of facts. The facts were discussed in the original appeal in this case.
DISCUSSION
As we have noted, appellate counsel has filed a Delgadillo brief and asks the court to independently review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738, counsel has identified a possible issue which was considered in evaluating the potential merits of this appeal: Whether the jury could have relied on the instructions on natural and probable consequences that were applied to the codefendant in convicting Harris.
We have independently reviewed the record for error. We have not discovered any potentially meritorious issues for reversal on appeal. Competent counsel has represented Harris on this appeal.
DISPOSITION
The order denying Harris's petition for resentencing is affirmed.
WE CONCUR: IRION, J., CASTILLO, J.