Opinion
B302268
05-22-2020
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND CHARLES RANDOLPH, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA027017)
THE COURT:
In 2002, Raymond Charles Randolph (defendant) fatally shot a person in the back. (See People v. Randolph (Nov. 15, 2005, B177777) [nonpub. opn.].) In 2004, a jury convicted defendant of second degree murder (Pen. Code § 187, subd. (a)), assault with a semi-automatic firearm (§ 245, subd. (b)) and possession of a firearm by a felon with priors (§ 12021.1). The jury also found that defendant personally used a firearm (§ 12022.5), and personally and intentionally discharged a firearm causing great bodily injury and death. (§ 12022.53, subd. (d).) In a separate proceeding, the jury found that defendant's two prior felony convictions constituted "strikes" within the meaning of our Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), constituted prior serious felonies (§ 667, subd. (a)(1)), and resulted in prison terms (§ 667.5, subd. (b).) The trial court sentenced defendant to prison for 80 years to life, comprised of a sentence of 45 years to life for the murder (that is, a base sentence of 15 years tripled due to the prior strikes), plus a consecutive sentence of 25 years to life for the firearm enhancement, plus five years for each of the two prior convictions. The court imposed but stayed a 10-year sentence for the assault with a firearm, and imposed a concurrent 25-years-to-life sentence for the firearm possession by a felon conviction.
All future statutory references are to the Penal Code unless otherwise stated. --------
On January 9, 2019, defendant filed a Petition for Recall of Sentence pursuant to section 1170.91. That statute provides that a person serving a sentence for a felony conviction who is or was a member of the United States military and who may be suffering from certain listed maladies may petition for recall of sentence to request resentencing. (§ 1170.91, subd. (a).) Section 1170.91, subdivision (a) concerns sentences imposed "under subdivision (b) of Section 1170." Section 1170 is the determinate sentencing statute.
On January 28, 2019, defendant filed a petition for resentencing under section 1170.95, as enacted pursuant to Senate Bill No. 1437 (SB 1437), effective January 1, 2019. SB 1437 invalidates murder convictions when the defendant 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." (Stats. 2018, ch. 1015, § 1, subd. (f), emphasis added.)
The trial court appointed counsel to represent defendant on both petitions, held a hearing, and denied both of defendant's petitions on the grounds that he was ineligible for either form of relief. With respect to the section 1170.91 petition, the court denied relief because defendant "was not sentenced pursuant to Penal Code Section 1170 at all" and 1170.91 "is a statute that is very specific." With respect to the section 1170.95 petition, the court denied relief because "[i]t is very clear in this case that the defendant was the actual shooter," such that defendant failed to state a prima facie case for relief under the statute. Further, the court noted that "[t]he only theory of murder presented to the jury was one of malice aforethought" and that the jury was neither instructed on the natural and probable consequences theory of aiding and abetting, nor upon any theory of felony murder. Defendant's counsel acknowledged that there were no legal arguments he could make to refute the court's analysis but with respect to 1170.91 "wish[ed] the law was drafted in such a way that [defendant's military service] could be taken into consideration, even in cases involving indeterminate sentencing."
Defendant appealed, and his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On February 20, 2020, we notified defendant of his counsel's brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered.
Defendant submitted a six-page letter brief raising two issues.
First, defendant argues that the trial court erred in denying his section 1170.91 petition because that form of relief reaches "any person who was sentenced for a felony conviction prior to January 1, 2015," not just persons sentenced under section 1170, subdivision (b). Defendant bases his argument on language found in Assembly Bill No. 865 (2017-2018 Reg. Sess.) as originally introduced. However, that was not the language ultimately enacted by our Legislature. As between the two, we must enforce what was enacted and not its original incarnation. Because section 1170.91 is limited to determinate sentences—and defendant's only determinate sentence was the 10 year sentence for assault with the firearm that was stayed and hence has no effect on the duration of his current sentence—section 1170.91 does not reach any conviction comprising his current sentence.
Second, defendant asks for a new lawyer, complaining that his current appellate counsel "has done nothing to help." However, counsel's inability to make a successful argument on appeal is not due to any deficiency in counsel; it is due to the unavailability of relief under the pertinent statutes. Moreover, we have independently examined the entire record and, after so doing, are satisfied that defendant's attorney has fully complied with her responsibilities and that no other arguable issues exist. We conclude that defendant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 123-124.) Accordingly, there is no justification for the appointment of substitute appellate counsel.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. /s/_________
LUI, P.J., /s/_________
ASHMANN-GERST, J., /s/_________
HOFFSTADT, J.