Opinion
B306477
05-14-2021
THE PEOPLE, Plaintiff and Respondent, v. STEVEN TALIAN, Defendant and Appellant.
Lori A. Quick, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA407892) APPEAL from an order of the Superior Court of Los Angeles County, Renee F. Korn, Judge. Affirmed. Lori A. Quick, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
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A jury in 2015 convicted Steven Talian of second degree murder after the body of Richard Michael Ramirez was found where Talian had placed it in a garbage container outside the apartment building where he lived. The superior court denied Talian's 2019 petition for resentencing pursuant to Penal Code section 1170.95, finding Talian ineligible for relief based on the record of conviction, which reflected that Talian was the actual killer and had not been convicted under the felony-murder rule or the natural and probable consequences doctrine.
Statutory references are to this code. --------
No arguable issues have been identified following review of the record by Talian's appointed appellate counsel. We also have identified no arguable issues after our own independent review of the record and analysis of the contentions presented by Talian in his supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Talian's Conviction for Second Degree Murder
As summarized in our opinion affirming Talian's conviction for second degree murder (People v. Talian (Oct. 23, 2017, B271653) [nonpub. opn.]), after Ramirez's body (naked from the waist down) was found in the trash container where Talian had placed it, police investigators went into Talian's apartment and saw "bloodstains throughout the unit, including on the front door, the living room wall, the kitchen, the interior door to the bedroom, the bathroom, the living room carpet, a couch, a mattress, a pair of shorts, a shirt, and a piece of paper. There were 'blood spatter, blood droplets, and bloodstains on the walls of the living room.' Underneath the cushion on the couch, investigators found 'a large dark stain on the bottom of the cushion and a significant pool of what appeared to be blood on a piece of fabric that lined the bottom of the couch.' They also found a portion of a broken lamp (police found the other part of the lamp outside, next to the trash container), feathers, and 10-pound exercise weights from a well-known commercial gym. The DNA profile obtained from the bloodstains on the couch cushion and the bathtub matched Ramirez's DNA profile. The DNA profile obtained from the bloodstains on the door and the floor matched Talian's DNA profile." The forensic pathologist concluded Ramirez had died from multiple traumatic injuries to the head caused by a hard instrument, such as a bat, pipe or lamp.
Talian did not deny killing Ramirez. Rather, at trial counsel for Talian argued he had done so while defending his home against attack. Consistent with this defense, Talian's counsel asked the court to instruct the jury with CALCRIM No. 506, Justifiable Homicide: Defending Against Harm to Person Within Home or on Property, and CALCRIM No. 571, Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of Another. And in her closing argument counsel for Talian argued her client had acted in self-defense after Ramirez broke into the apartment, high on methamphetamine and carrying a gun.
The trial court refused to give the instructions requested by defense counsel, ruling there was no substantial evidence to support them. We affirmed that ruling on appeal, holding, "Substantial evidence did not support giving either instruction because there was no evidence Talian acted, reasonably or unreasonably, to defend his home or himself from Ramirez. The only evidence concerning the two men's relationship and interaction was that they knew each other, were seen together in and around the apartment building, and appeared to be on friendly terms. And there was no evidence Ramirez broke into Talian's apartment. There was testimony about damage to the door leading to the back stairs, but even if an intruder were to get past that door, he or she would still have to go up the stairs and break in through the back door of Talian's apartment, and the detective found that door locked and undamaged. Indeed, the detective found no damage to any of the doors, windows, or locks of the apartment, or any other sign of a break-in."
We also held the prosecutor had not engaged in misconduct by stating, in rebuttal to defense counsel's closing argument, that there was no evidence Talian had acted in self-defense, the court had not instructed the jury on self-defense and the jury could not consider self-defense in reaching its verdict.
2. Talian's Postjudgment Motion
On October 19, 2019 Talian, representing himself, filed a form petition for resentencing checking boxes declaring, in part, he had been convicted at trial of first or second degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine and could not now be convicted of murder because of the changes to accomplice liability for murder effected by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015).
The superior court appointed counsel to represent Talian. The prosecutor filed an opposition to the petition, arguing Talian was ineligible for resentencing under section 1170.95 because his murder conviction was not based on the felony-murder rule or the natural and probable consequences doctrine and the record of conviction established he had been the actual killer. The prosecutor also argued section 1170.95 was unconstitutional. Talian did not file a reply memorandum.
Following a telephonic hearing, the court issued a written ruling denying the petition, finding Talian was not eligible for relief as a matter of law. "The court file reflects that the petitioner was the actual killer and was not convicted under a theory of felony-murder of any degree, or a theory of natural and probable consequences."
Talian filed a timely notice of appeal.
DISCUSSION
In accord with the procedures described in People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, we appointed counsel to represent Talian on appeal. After reviewing the record, appointed counsel filed a brief raising no issues. Appointed counsel advised Talian on February 22, 2021 that he had 30 days to submit a brief or letter raising any grounds of appeal, contentions or arguments he wanted the court to consider. We thereafter granted Talian an extension of time to file his supplemental letter brief.
On April 29, 2021 we received a single-page handwritten supplemental brief from Talian that asserts the People never proved he was the killer. He also contends a square had been cut open in the security door leading to his apartment and there was a bullet hole in a wall of the apartment and "a bullet hole that went thru the goose down comforter that left feathers everywhere"—none of which was brought up at his trial.
The matters raised in Talian's letter brief, which appear to be directed to the defense he offered at trial, do not address his eligibility for relief under section 1170.95, which applies only to individuals convicted of murder under the felony-murder rule or the natural and probable consequences doctrine, neither of which was at issue at his trial. As the superior court ruled, the record of conviction unequivocally establishes that Talian was Ramirez's actual killer. As such, he is ineligible for resentencing under section 1170.95 as a matter of law. (See, e.g., People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, review granted Mar. 18, 2020, S260493.)
Because no cognizable legal issues have been raised by Talian's appellate counsel or by Talian or identified in our independent review of the record, the order denying the postjudgment motions is affirmed. (See People v. Cole, supra, 52 Cal.App.5th at pp. 1039-1040, review granted; see also People v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.