Opinion
G063345
06-20-2024
THE PEOPLE, Plaintiff and Respondent, v. TYREE MAURICE MITCHELL, Defendant and Appellant.
James M. Crawford, 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NOT TO BE PUBLISHED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 Bernardino County, No. FVA020066 Jon D. Ferguson, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOORE, ACTING P. J.
In 2008, after a jury trial, defendant Tyree Maurice Mitchell was found guilty of one count of first degree murder (Pen. Code, § 187), two counts of attempted murder (§§ 664, 187), one count of shooting at an occupied vehicle (§ 246), and one count of possession of a firearm by a felon (§ 12021, now § 29800; Stats. 2010, ch. 711, §4, eff. Jan. 1, 2012). The jury also found numerous enhancements true, including that defendant personally used and discharged a firearm in the commission of the murder and one attempted murder. (§ 12022.53, subds. (b)-(d).) The jury also found Mitchell committed the attempted murders willfully, deliberately, and with premeditation. (§ 664, subd. (a).) Mitchell was sentenced to a total of 160 years to life.
Subsequent statutory references are to the Penal Code.
In 2023, Mitchell filed a petition for resentencing pursuant to section 1172.6. The trial court determined the petition failed to set forth a prima facie case and denied the petition. Mitchell filed a notice of appeal. Appointed appellate counsel filed an opening brief raising no arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) In the interests of justice, this court has reviewed the record and found no arguable issues. (See People v. Delgadillo (2022) 14 Cal.5th 216, 230 ["if the appellate court wishes, it may also exercise its discretion to conduct its own independent review of the record in the interest of justice"].) Thus, we affirm the order of the trial court.
I
FACTS
For informational purposes, we repeat the relevant facts from our prior appeal in this matter, People v. Mitchell (Feb. 9, 2010, G041189) [nonpub. opn.]. "Sometime prior to June 2003, defendant told an acquaintance, Latecca Junius (Junius), he was a member of a Blood gang called the West Covina Mob. Junius's brother, Anthony Junius, was a member of another Blood gang, Squigley Lanes. The color red is associated with Blood gangs.
"Defendant and Anthony Junius had previously been in the same prison at the same time. Both told Junius they 'got into a fight' with each other while in prison.
"On June 27, 2003, Junius and her fiancee, Damone Shaddock, went to defendant's house to look at some clothes defendant's brother had for sale. Later that evening, Anthony Junius asked Junius to give him a ride to pick up defendant.
"When Junius, Anthony Junius and Shaddock picked up defendant, he was wearing a 'reddish' shirt. Defendant directed Junius to drive to some apartments in Fontana so he could 'go holler at some homies.' At the apartments, defendant got out and walked along a walkway into the complex. The car remained in a carport.
"Defendant returned to the car five to seven minutes later wearing blue clothes and black leather gloves. Anthony Junius was standing along side the car. Junius said the windows of the car were tinted, and that 'the front windows were slightly lighter than the back windows' so she could see defendant talking to her brother. At that point, she heard gunshots. Junius saw the back window of the car shattered. She said: 'After that, the defendant takes a step or two and points the gun in Damone's direction, and he -- he shoots.' She said she saw defendant shoot Shaddock. Junius then saw defendant 'point[] the gun in [Junius's] direction and pull[] the trigger, and nothing comes out.' Defendant yelled out an obscenity and 'took off.'
"Junius saw blood coming from Shaddock. Shaddock said, 'Anthony ran. Drive off.' She did. She lost reception on her phone and ended up at a gas station where she saw a police car. She next saw her brother at the police station.
"Fontana Police Officer Carlo Granillo was at a Mobil gas station at 3:09 a.m. on June 28, 2003 when 'Junius came up frantic and was trying to get my attention, was banging on the glass window.' Shaddock had a faint pulse and was breathing. When he was being moved from the car, a bullet casing fell from his clothing. Granillo described the vehicle: 'The rear rightcorner panel of the vehicle appeared to have sustained several bullet holes and some graze marks from apparently being shot at. There's also some blood on the rear right-corner panel. In addition to the front driver's side, the right side near the window doorframe of the passenger door had also had some bullet strikes, and apparently the window had been shot at as well with the glass fragments.'
"Field evidence technician Cynthia Altheide processed the crime scene as a patrol officer. She photographed Anthony Junius. He had a number of wounds. Shaddock died from internal injuries resulting from gunshot wounds to his chest and abdomen." (People v. Mitchell, supra, G041189.)
The jury instructions given in the original trial were provided to the court for its consideration of Mitchell's petition. A review of the jury instructions reveals that the jury was not instructed on felony murder, the natural and probable consequences doctrine, or any theory where malice was imputed solely based on Mitchell's participation in a crime. The court instructed: "The defendant has been prosecuted for first degree murder under two theories: One, the murder was willful, deliberate and premeditated; and two, the murder was committed by lying in wait." Proper instructions were provided on both theories. As to attempted murder, the court instructed the jury: "The People must prove that: One, the defendant took at least one direct but ineffective step towards killing another person; and two, the defendant intended to kill that person." Further, the jury was instructed on the additional allegation that the attempted murder was willful and with premeditation and deliberation.
Mitchell filed the instant petition in 2023. Counsel was appointed for him. The prosecution filed a response arguing that Mitchell was ineligible for relief because he was the actual shooter. Counsel for Mitchell filed a reply. At the hearing on the petition, the court stated: "I think, unfortunately, it's a very clear case for Mr. Mitchell, in the sense that the jury was never instructed on a theory that was impacted by 1170.95 or 1172.6. He was found guilty on two theories of first-degree murder, both of which are still unimpacted by those new sections, first-degree premeditated murder and lying-in-wait. He was singly charged further with respect to the two counts of attempted murder. He was -- the jury found true the willful, deliberate, and premeditated allegations, again, taking it out of any sort of natural probable consequences theory. [¶] Like I said, he was singly charged. Firearm use allegations were found true. I think those findings are part of the record of conviction, not requiring going back and weighing evidence and making credibility determinations and the like, which is typically reserved for an order to show cause hearing. And so for those reasons, based on the record of conviction, I find that Mr. Mitchell is not entitled to relief under either 1170.95 or 1172.6, and the petition is denied."
It was unclear, from both the petition and counsel's reply, whether Mitchell's petition was directed toward his convictions for murder, attempted murder, or both. For the sake of this opinion, we shall assume it was directed toward all three counts.
Mitchell filed a notice of appeal. After his counsel filed the brief requesting review pursuant to Wende, we issued an order granting Mitchell 30 days to file a supplemental brief on his own behalf. No supplemental brief was received.
II
DISCUSSION
When a defendant's counsel identifies no arguable issues on appeal, an appellate court independently reviews the record for arguable issues. (Wende, supra, 25 Cal.3d at pp. 441-442.) Generally, "an arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel's professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment." (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
After independently reviewing the record, this court has found no arguable issues. The trial court properly limited its review to the record of conviction and did not engage in impermissible factfinding at the prima facie stage. (People v. Lewis (2021) 11 Cal.5th 952, 972; People v. Drayton (2020) 47 Cal.App.5th 965, 980, abrogated on other grounds by Lewis, supra, 11 Cal.5th at p. 963.)
The jury instructions did not include any theory that would be precluded under current law, such as natural and probable consequences or felony murder. This leads to the conclusion that the jury could only have found that Mitchell was the sole perpetrator and actual killer and acted with the requisite intent for first degree murder and attempted murder, particularly given the additional finding that the attempted murders were willful and with premeditation and deliberation. Accordingly, he is precluded from relief under section 1172.6 as a matter of law.
III
DISPOSITION
The order is affirmed.
WE CONCUR: MOTOIKE, J., GOODING, J.