Opinion
A158236
03-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES EARL WORTHAM, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 31405)
Defendant James Earl Wortham, Jr., filed a notice of appeal from an order denying his petition under Penal Code section 1170.95. Defendant's appellate counsel has asked for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Counsel has notified defendant of his right to file a supplemental brief. No supplemental brief has been received. Upon independent review of the record we find no arguable issues on appeal and affirm the order denying the petition.
All further statutory references are to the Penal Code unless otherwise indicated.
We summarize the facts from our 1988 opinion affirming defendant's conviction for second degree murder. (People v. Wortham (Jan. 22, 1988, A035965) [nonpub. opn.] (Wortham).) Defendant was selling cocaine when he asked Melvin Owens if he wanted to buy any drugs. Owens declined the offer. Keith Parker, a friend of Owens, stopped his car and walked over to Owens. Defendant offered to sell Parker drugs. After Owens told defendant Parker did not want to purchase bad drugs, defendant became angry, threatened Owens, and an altercation ensued. Defendant grabbed Parker who then struck him in the face. Defendant grabbed Parker a second time, pulled a pistol from his pocket, and shot Parker. He died from a gunshot wound to the chest. (Wortham, supra, A035965.)
We take judicial notice, pursuant to Evidence Code section 452, subdivision (d), of our prior opinion.
In 1986, defendant was convicted following a jury trial of second degree murder (§ 187) and was found to have personally used a firearm during the crime (§ 12022.5). In August 1986, the trial court sentenced defendant to 15 years to life for the murder plus a consecutive two years for use of a firearm. (Wortham, supra, A035965.)
In January 1988, we affirmed the judgment. (Wortham, supra, A035965.)
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January 1, 2019. The bill altered the definitions of malice and first and second degree murder under sections 188 and 189. (Stats. 2018, ch. 1015, §§ 2, 3.) Specifically, these revisions amended "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." (Id., § 1, subd, (f).)
On April 24, 2019, defendant filed a petition for resentencing pursuant to section 1170.95, alleging he was convicted of murder under the felony murder rule or the natural and probable consequences doctrine and could not be convicted of murder in view of the changes made to the murder statutes, sections 188 and 189, by Senate Bill No. 1437 (2017-2018 Reg. Sess.).
On May 14, 2019, the trial court appointed counsel to represent defendant. The People filed opposition to defendant's petition, and defendant's counsel filed a reply in support of the petition.
The trial court, on August 5, 2019, in a detailed written order, denied defendant's petition for failing to set forth a prima facie case for relief. Significantly, after taking judicial notice of the superior court file and our nonpublished opinion in case No. A035965, the trial court found the jury was not instructed on the theories of felony murder or natural and probable consequences. (Wortham, supra, A035965.) As a result, the court concluded the jury could not have relied upon "either of the two theories of murder that have been discarded by [Senate Bill No.] 1437."
In its order, the court listed, in relevant part, the then-applicable CALJIC instructions given to the jury. --------
We agree with the trial court that defendant's petition failed to make out a prima facie case for relief under section 1170.95, as defendant failed to complete either sections 5 or 6 of the form he chose to use. Moreover, on the merits, we conclude defendant cannot show he is entitled to resentencing because the jury found he personally used a firearm during the commission of the murder. In short, because defendant was the actual killer, he is not entitled to relief under section 1170.95.
Accordingly, the judgment is affirmed.
/s/_________
Margulies, Acting P. J. We concur: /s/_________
Banke, J. /s/_________
Sanchez, J.