Opinion
B320326
11-22-2022
THE PEOPLE, Plaintiff and Respondent, v. DIAMOND JONES, Defendant and Appellant.
Leonard J. Klaif, 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NOT TO BE PUBLISHED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 Los Angeles County, No. TA083886 Ricardo R. Ocampo, Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Diamond Jones appeals from an order denying his petition for resentencing under former section 1170.95 of the Penal Code.His appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), identifying no issues on appeal and requesting that we independently review the record to determine whether there are any arguable issues. We have undertaken that review and, finding no arguable issues, affirm the court's order.
Subsequent statutory references are to the Penal Code. In 2022, the Legislature renumbered section 1170.95 as section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.)
In People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, Division Two of this court held that when an appeal is other than a direct appeal from the defendant's conviction, the procedures established in Wende do not apply, and when, as here, "the defendant does not file a supplemental brief, the Court of Appeal may dismiss the appeal as abandoned." (Id. at p. 1039.) Our Supreme Court is currently considering whether Wende procedures apply in appeals from orders denying postconviction relief. (People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb. 17, 2021, S266305; S266305, Supreme Ct. Mins., Feb. 17, 2021, p. 200.) Jones's counsel acknowledges the holding in Cole, but urges this court to follow the Wende procedure until the Supreme Court provides further guidance. Without expressing any view on the issues pending in Delgadillo, we have reviewed this case in accordance with Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106.
I.
In 2006, a jury convicted Jones of premeditated attempted murder (§§ 664, 187, subd. (a)) and found true allegations that he personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and committed the attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)). (People v. Jones (Sept. 9, 2008, B197557) [nonpub. opn.] (Jones).) The court sentenced him to life in prison with the possibility of parole, with a minimum prison term of seven years, plus 25 years on the firearm enhancements. The court also imposed and stayed a minimum 15-year prison term pursuant to section 186.22, subdivision (b)(5).
The court's sentencing minute order and an abstract of judgment filed in March 2007 states that the 15-year minimum term was imposed pursuant to subdivision (b)(1)(C) of section 186.22. The authority for that punishment, however, is subdivision (b)(5) of section 186.22. The March 2007 abstract of judgment does not reflect the stay of the minimum 15-year term. This was subsequently corrected, as reflected in an amended abstract of judgment filed in 2016.
We affirmed the judgment in an unpublished opinion. (Jones, supra, B197557.)
In February 2022, Jones, with the aid of counsel, filed a petition for resentencing under former section 1170.95.
The District Attorney filed a response to the petition in which he argued that the record of conviction shows that Jones's conviction was not based on the natural and probable consequences doctrine or any other theory that was affected by the enactment or amendment of former section 1170.95. The District Attorney supported its argument with a copy of the jury instructions given at Jones's trial, which show that the jurors were instructed that, to convict Jones of attempted murder, they had to find that he "intended to kill." The instructions do not include any instruction on the natural and probable consequences doctrine.
Defendant, with the aid of counsel, filed a reply to the District Attorney's response. Counsel acknowledged that the jury was not instructed as to the natural and probable consequences doctrine, but argued that the evidence, "the instructions as a whole," and the arguments of counsel during his trial permitted the jury to convict him of attempted murder under an implied malice theory.
On April 20, 2022, the court denied the petition on the ground that it failed to state a prima facie case for relief.
Defendant filed a timely notice of appeal and we appointed counsel for him.
II.
On September 29, 2022, Jones's counsel filed his brief pursuant to Wende, which provided a summary of the factual and procedural history of the case. Counsel also submitted his declaration that he has reviewed the entire record on appeal, and that he has written to Jones, advising him of his right to file a supplemental brief and that the appeal will be dismissed if he does not. Counsel further stated that he will "continue to be available." Counsel provided a copy of his brief to Jones.
On October 5, 2022, this court sent a letter to Jones informing him that his counsel has filed a "brief that raises no issues" and that Jones may submit within 30 days a supplemental brief or letter stating any grounds for appeal, or contentions, or arguments that he wishes this court to consider.
Jones did not submit a supplemental brief or otherwise inform us of any issues for this court to consider.
III.
We are satisfied that Jones's counsel has fully complied with his responsibilities. (Wende, supra, 25 Cal.3d at p. 441.)
We have reviewed the entire record on appeal and found no arguable issues to be briefed. Because the trial court did not instruct Jones's jury as to the natural and probable consequences doctrine or other theory of imputed malice, he is not entitled to relief under former section 1170.95 as a matter of law. (See People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Cortes (2022) 75 Cal.App.5th 198, 205; People v. Daniel (2020) 57 Cal.App.5th 666, 677; People v. Soto (2020) 51 Cal.App.5th 1043, 1055; People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5.) We therefore affirm the court's order. (Wende, supra, 25 Cal.3d at p. 443.)
DISPOSITION
The court's April 20, 2022 order denying Jones's petition for resentencing is affirmed.
We concur: CHANEY, J. BENDIX, J.