Opinion
C089154
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER HOWARD JONES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STK-CR-FE-2003-0007027)
After the trial court denied defendant Christopher Howard Jones's petition for resentencing, appointed counsel asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the trial court's order denying the petition for resentencing.
I
"After two individuals were shot and killed in their home, an information charged defendant . . . and [his] codefendant . . . with murder, robbery, burglary and conspiracy to commit those crimes. (Pen. Code, §§ 182, 187, 211, 459; unspecified statutory references that follow are to the Penal Code.) A jury [found] defendant [guilty] of robbery, burglary and two counts of murder, and found charged firearm enhancements and special circumstances true, but was unable to reach a verdict on the conspiracy charge. The trial court dismissed that count, and sentenced defendant to an aggregate sentence of 56 years to life plus two consecutive life sentences without the possibility of parole." (People v. Jones (Aug. 31, 2007, C048432) [nonpub. opn.].)
Following remand, defendant appealed a second time. In an unpublished decision issued on November 19, 2009 (case No. C06002), this court affirmed the judgment.
Almost 10 years later, on January 11, 2019, defendant filed a petition seeking resentencing under newly enacted section 1170.95. The Legislature enacted and the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019 (Stats. 2018, ch. 1015), determining that the change in law was " 'necessary 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. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275.) As pertinent here, Senate Bill No. 1437 added section 1170.95, which permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the murder conviction and resentence the person on any remaining counts if, among other things, the petitioner could not be convicted of first or second degree murder due to the change in the law. (§ 1170.95, subd. (a).)
Here, in a memorandum of decision, the trial court noted the charges for which defendant was convicted, along with the special allegations and the jury instructions relative to special circumstances (CALJIC No. 8.80.1). Although the trial court did not state the precise basis for its decision, it appears the trial court concluded defendant was, at a minimum, a major participant in the underlying felony and acted with reckless indifference to human life. The trial court found defendant ineligible for resentencing under this new law.
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Whether the protections afforded by Wende, supra, 25 Cal.3d 436 and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an order denying a petition brought pursuant to section 1170.95 remains an open question. The California Supreme Court has not addressed the issue. The Anders/Wende procedures address appointed counsel's representation of an indigent criminal defendant in the first appeal as a matter of right and courts have been loath to expand their application to other proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551 ; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th 952; People v. Dobson (2008) 161 Cal.App.4th 1422; People v. Taylor (2008) 160 Cal.App.4th 304; People v. Thurman (2007) 157 Cal.App.4th 36; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.) Nevertheless, in the absence of California Supreme Court authority to the contrary, we adhere to Wende in the present case where counsel has already undertaken to comply with Wende requirements.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The trial court's order denying the petition for resentencing is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
HULL, J.