Opinion
E081280
09-06-2023
THE PEOPLE, Plaintiff and Respondent, v. DUWAYNE M. JACKSON, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB028521. Ronald M. Christianson, Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Dismissed.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Duwayne M. Jackson appeals from the order of the San Bernardino Superior Court denying his Penal Code section 1172.6 petition for resentencing.
Section 1170.95 was renumbered as section 1172.6 without change in the text, effective June 30, 2022. (Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to the provision by its new numbering. All further statutory references are to the Penal Code.
BACKGROUND
In 2000, the victim suffered gunshots to his leg, stomach, and kidney. When questioned by a San Bernardino Police Department detective, the victim identified defendant as the shooter. When the detective questioned witnesses who had been at the scene, they confirmed defendant shot the victim. None of the witnesses who testified at trial, including the victim, stated they had seen who the shooter was, so the People introduced their statements given to the police detective shortly after the shooting.
The facts are taken in part from this court's prior opinion from defendant's direct appeal. (People v. Jackson (Aug. 21, 2003, E032403) [nonpub. opn.].)
In 2002, a jury convicted defendant of attempted murder (§§ 187, 664) and assault with a firearm (§ 245, subd. (a)(2)). It also found true allegations made in connection with the attempted murder charge that defendant personally inflicted great bodily injury, personally used a firearm, and personally discharged a firearm causing great bodily injury. (§ 12022.53, subds. (b), (c), (d).) The trial court sentenced him to 34 years to life. Defendant appealed the judgment and argued inter alia, that the People's use of the witnesses' prior out-of-court inconsistent statements violated the confrontation clause of the federal and state constitutions. We affirmed. (Jackson, supra, E032403.)
In July 2022, defendant filed a section 1172.6 petition for resentencing, which attached an affidavit from the victim. The court-appointed counsel for defendant and the People filed briefs on the issue whether defendant made a prima facie showing of entitlement to relief. The People attached copies of the jury instructions and verdicts, as well as copies of the information and our opinion in Jackson, supra, E032403 to their brief.
The trial court denied the petition at the April 6, 2023 prima facie hearing on the grounds that defendant is statutorily ineligible for relief. It reviewed the court's file and found defendant was the sole person charged with the attempted murder, the case was tried on the theory that he was the actual shooter, and the jury convicted him of attempted murder and found true an allegation that defendant personally used a firearm and inflicted great bodily injury on the victim.
Defendant timely noticed this appeal and we appointed counsel to represent him.
DISCUSSION
Appointed appellate counsel filed an opening brief that sets forth statements of the case and facts but does not present any issues for adjudication. Counsel requests we exercise our discretion under People v. Delgadillo (2022) 14 Cal.5th 216 to conduct an independent review of the record and suggests we have plenary discretion to address the following question: whether the trial court erred (i) when it denied defendant's petition, finding that he had not established a prima facie case, and (ii) when it did not issue an order to show cause.
We notified defendant that his counsel had filed a brief stating no arguable issues could be found and that this court may, but is not required, to conduct an independent review of the record. (People v. Delgadillo, supra, 14 Cal.5th 216.) We invited him to file any arguments he deemed necessary and cautioned that failure to timely file a supplemental brief might result in the dismissal of his appeal as abandoned. Defendant did not file a brief.
Neither defendant nor his counsel have presented an issue and upon our review of the record, we do not find any error. Accordingly, we dismiss defendant's appeal.
DISPOSITION
The appeal is dismissed.
We concur: FIELDS J., MENETREZ J.