Opinion
E074336
06-15-2020
THE PEOPLE, Plaintiff and Respondent, v. LEON DWANE HAWKINS, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF032287) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury found defendant and appellant Leon Dwane Hawkins guilty of second degree murder. (Pen. Code, § 187, count 1.) It also found that he personally used a firearm in the commission of the offense (former §§ 12022.5, subd. (a), 1192.7, subd. (c)(8)), and that he personally and intentionally discharged a firearm, causing great bodily harm or death (former § 12022.53, subd. (d)). (People v. Hawkins (Jan. 28, 2003, E029896) [nonpub. opn.].) In a bifurcated hearing, a trial court found that defendant had one prior strike conviction. (Former §§ 667, subds. (c) & (e), 1170.12, subd. (c).) (People v. Hawkins, supra, E029896.) The court sentenced him to a total term of 60 years to life in state prison.
All further statutory references will be to the Penal Code, unless otherwise noted.
On our own motion, we take judicial notice of our prior unpublished opinion in People v. Hawkins, supra, E029896. (Evid. Code, §§ 452, subd. (d) & 459.) --------
Defendant appealed his conviction, and this court affirmed the judgment. (People v. Hawkins, supra, E029896.)
On September 30, 2018, the Governor signed Senate Bill No. 1437, which became effective on January 1, 2019. Senate Bill No. 1437 "was enacted 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.' " (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Senate Bill No. 1437 added section 1170.95, "which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions." (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417.)
On August 15, 2019, defendant filed a petition in the superior court pursuant to section 1170.95, alleging that he was convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine and that he could not now be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019.
The superior court held a hearing on the petition on December 13, 2019. Referring to the appellate opinion, the prosecutor informed the court that defendant was the actual killer in this case, and the allegation that he personally used a firearm in the commission of the offense was found true. Defense counsel objected for the record but said he "[did not] disagree with the recitation." The court dismissed the petition.
Defendant filed a notice of appeal regarding the denial of the section 1170.95 petition. We affirm.
DISCUSSION
Defendant appealed and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and identifying no potential arguable issues. Counsel has also requested this court to undertake a review of the entire record.
We offered the defendant an opportunity to file a personal supplemental brief, which he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. RAPHAEL
J.