Opinion
E079047
10-12-2022
THE PEOPLE, Plaintiff and Respondent, v. CARMEN NICOLE WORTHY, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FWV17003997 Ingrid Adamson Uhler, Judge. Affirmed.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendant and appellant Carmen Nicole Worthy appeals from a trial court's order denying her petition for resentencing under Penal Code section 1170.95. For the reasons forth post, we affirm the court's order.
STATEMENT OF THE CASE
On May 10, 2018, a first amended information charged defendant and her codefendant John Corey Broyles with one count of murder (Pen. Code, §187, subd. (a)) for killing the victim. On May 30, 2018, a jury found "defendant Guilty as to Count 001, PC 187(A)-F: Murder." On July 26, 2018, the trial court sentenced defendant to 25 years to life.
Defendant appealed from her underlying conviction. While her direct appeal was pending, defendant filed a petition for resentencing under Penal Code section 1170.95. The trial court found defendant ineligible for relief. Defendant appealed from the trial court's denial of her motion for resentencing.
On April 7, 2020, we issued an unpublished opinion on the direct appeal in People v. Broyles (April 7, 2020, E071002) [nonpub. opn.]. We found that "the trial court erroneously instructed the jury [regarding deliberation and premeditation] such that it believed it could find [defendant] guilty of first degree murder without finding that she acted with deliberation." After reviewing the record in the case, however, we stated' "that it would have been 'virtually impossible'"' for [defendant] to have acted' "without at least a brief period of deliberation and premeditation."' We, therefore, concluded that the "evidence established beyond a reasonable doubt that a rational jury would have found that [defendant] aided and abetted Broyles in the murder of [the victim] willfully, deliberately, and with premeditation."
On May 19, 2021, we issued an unpublished opinion on defendant's appeal from the denial of her motion for resentencing in People v. Worthy (May 19, 2021, E076125) [nonpub. opn.]. We found, "[h]ere, the trial court correctly concluded that [defendant] was statutorily ineligible for relief [under Penal Code section 1170.95] as a matter of law based on the record of conviction." Therefore, we affirmed the trial court's order denying defendant's petition for resentencing under Penal Code section 1170.95.
On March 21, 2022, defendant filed another petition for resentencing. On April 5, 2022, the prosecutor filed a "Notice of Motion and Motion to Strike the Defendant's Petition for Resentencing; Request for Judicial Notice" to which it attached our two prior opinions. On April 8, 2022, the trial court summarily denied defendant's petition.
On May 18, 2022, defendant filed a notice of appeal.
The factual background is taken from this court's nonpublished opinion from Worthy's direct appeal in case No. E071002. (People v. Broyles, supra, E071002.)
In March 2000, defendant was living with her cousin, the victim. Defendant called the victim's mother (defendant's aunt) and complained that the victim was "cutting the weed" and had not been "bringing what he's supposed to be bringing." Defendant sounded "[a]gitated" and "aggressive." Defendant's aunt thought the call was "very unusual" because she had not heard from defendant "in a long time." Defendant's aunt "cut [the conversation] real short" because she did not like defendant's "attitude and her way of talking" and told defendant that she would talk to the victim.
Around the same time, C.D., who was 15 years old at the time, overheard defendant say to Broyles something to the effect that she knew someone with "some money coming in" and that she "wanted him dead" and "wanted somebody to do it."
Sometime in the next few days, Broyles left defendant's apartment with the victim. Later that evening, Broyles entered defendant's apartment and said he "did it." Defendant responded," 'Are you for real?'" " 'Oh, my God.' "
Defendant, C.D., and Broyles went outside to the victim's car. Broyles opened the trunk, and the victim was inside. Broyles said he shot the victim in the head using a shampoo bottle as a silencer. Broyles and defendant's boyfriend also "had to beat [the victim] up to put him in the trunk" because "he didn't die right off the bat." The victim then made a "loud snoring noise," so Broyles told defendant to go get knives. Defendant returned with two knives and handed one to Broyles. Broyles stabbed the victim several times, including once in the neck like he was trying to "cut off [the victim's] air circulation." C.D. saw defendant "thrusting" the knife at the victim, but he was not sure whether she stabbed the victim. The victim stopped making noises. Defendant and Broyles then discussed "what they were going to do with the body and how they were . . . going to do it."
Broyles, his brother, and C.D. drove to the mountains to dispose of the victim's body. Broyles parked the car on a dirt road. C.D. tried to help Broyles lift the victim's body from the trunk, but they could not lift it. Broyles and his brother successfully lifted the victim's body from the trunk and threw it down a hill. Broyles asked C.D. to hit the victim's teeth out with a hammer, but C.D. refused. Broyles poured gas on the body and set it on fire. They then left the scene.
DISCUSSION
After defendant appealed, and upon her request, this court appointed counsel to represent her. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and has requested this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issue to assist the court in its search of the record for error:
1. "Did the record justify the trial court's denial of appellant's petition for resentencing?"
We offered defendant an opportunity to file a personal supplemental brief, and she has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. We are satisfied that defendant's attorney has fully complied with the responsibilities of counsel and no arguable issue exists. (Kelly, at p. 126; People v. Wende, supra, 25 Cal.3d at pp. 441-442.)
DISPOSITION
The trial court's denial of defendant's petition for resentencing is affirmed.
I concur: RAMIREZ, P. J.
Slough, J., Dissenting.
I continue to agree with this court's holding in People v. Scott (2020) 58 Cal.App.5th 1127, that we should dismiss as abandoned Anders/Wende appeals of postconviction orders denying Penal Code section 1170.95 resentencing petitions when we can "readily confirm that, in fact, the defendant is ineligible for relief as a matter of law." (Scott, at p. 1131, review granted Mar. 17, 2021, S266853.)
Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.
This is precisely such a case-our opinion on direct appeal demonstrates Worthy is categorically ineligible for resentencing because she wasn't convicted on a felony murder or natural and probable consequences theory. As the majority note here, in Worthy's original appeal we "concluded that the 'evidence established beyond a reasonable doubt that a rational jury would have found that [defendant] aided and abetted Broyles in the murder of [the victim] willfully, deliberately, and with premeditation.'" (Maj. opn. ante, at p. 2.) In case any doubt remained, on Worthy's first petition for resentencing, we concluded she was ineligible for relief as a matter of law based on the record of conviction which established her "jury was not instructed on either the natural and probable consequences doctrine or the felony-murder rule . . . [meaning] she could not have been convicted based on either of these theories." (People v. Worthy (May 19, 2021, E076125) [nonpub. opn.] at p. 11.)
In view of our prior holdings, I have no idea what the majority means when they say they "independently reviewed the record for potential error" (maj. opn. ante, at p. 5) after receiving a Wende brief from Worthy's counsel identifying no issues warranting reversal. If they did go through the entire record and look for reasons the petition might be meritorious-which you certainly can't glean from the majority opinion-then the project was a misuse of judicial resources. (See Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544 ["Nothing is served by requiring a written opinion when the court does not actually decide any contested issues"].) In any event, the time spent drafting the majority opinion would have been better spent on other fully briefed appeals awaiting our review. I would dismiss the appeal as abandoned in a brief order.