Opinion
E082574
04-11-2024
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE GEORGE HASH, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. CR61262. John D. Molloy, Judge.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
Defendant and appellant Lawrence George Hash appeals the trial court's postjudgment order denying his petition for resentencing of his first degree murder conviction (Pen. Code, § 187, subd. (a)) under section 1172.6 (formerly section 1170.95). Appointed counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), requesting this court to conduct an independent review of the record. In addition, defendant has had an opportunity to file a supplemental brief with this court and has not done so. Because defendant's counsel filed a brief raising no issues and defendant was notified by this court and his counsel that failure to timely file a supplemental brief may result in the dismissal of the appeal as abandoned and was given an opportunity to file a personal supplemental brief but failed to do so, we may dismiss the appeal as abandoned. (Delgadillo, supra, at pp. 231-232.) However, having exercised our discretion to conduct an independent review of the record, we affirm the judgment. (Ibid.)
All future statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
According to the probation report, in September 1994, defendant fatally shot his business associate and disposed his body in a canyon. The body was discovered nine days later. Defendant admitted to shooting his associate but claimed to do so in selfdefense.
Following a jury trial, on March 23, 1998, a jury convicted defendant of first degree murder (§ 187, subd. (b)), and found true the enhancement allegation that defendant personally used a handgun in the commission of the murder (§ 12022.5, subd. (a).)
On May 29, 1998, the trial court sentenced defendant to an aggregate term of 29 years to life in state prison (25 years to life for the murder, plus four years for the gun-use enhancement). This court affirmed defendant's judgment in case No. E022783.
On September 21, 2022, defendant filed a petition for resentencing under section 1172.6. In his petition, among others, he checked the box stating he could not presently be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019, and requested appointment of counsel. The trial court subsequently appointed counsel for defendant and ordered defendant's "physical file," presumably defendant's trial records.
A hearing on defendant's petition was held on November 3, 2023. At that time, the prosecutor requested the petition be denied, arguing as follows: "The defendant shot the victim in the back office of his car dealership over a business dispute, recruited an employee to help clean up the body, and after reading a book found in his garage 'How to dispose of a dead body.' [¶] The [jury] instructions were sent to [defense counsel] on the 31st of this month. Nothing regarding aiding and abetting, natural and probable consequences theory, felony murder, or any other theory by which malice could be impeded the defendant was guilty. We'd ask the petition be denied at this time." After defense counsel confirmed that he had read the jury instructions and agreed, the trial court denied the petition. Defendant timely appealed.
III. DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the authority of Delgadillo, supra, 14 Cal.5th 216, setting forth a statement of the case and a summary of the procedural background. (See People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) Counsel considered potential issues on appeal but found no specific arguments as grounds for relief, and requests that we exercise our discretion and independently examine the appellate record for any arguable issues.
Appointed counsel notified defendant that "he may personally file a supplemental brief or letter in this case, and the case will likely be dismissed if he fails to do so." We also notified defendant that he may personally file any supplemental brief and that failure to timely do so may result in the dismissal of the appeal as abandoned.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
In Delgadillo, supra, 14 Cal.5th 216, the California Supreme Court held that Wende and Anders procedures do not apply in appeals from the denial of a section 1172.6 postjudgment petition. (Delgadillo, supra, at pp. 224-226.) Thus, we need not examine the entire record ourselves to look for arguable grounds for reversal. (Id. at p. 228.) Because defendant's counsel filed a brief raising no issues, and defendant was given an opportunity to file a personal supplemental brief but declined, we may dismiss the appeal as abandoned. (Id. at p. 232.) "Independent review in Wende appeals consumes substantial judicial resources," and "[t]he state . . . has an interest in an 'economical and expeditious resolution' of an appeal from a decision that is 'presumptively accurate and just.'" (Id. at p. 229.)
We, however, have discretion to conduct Wende review even when it is not required. (Delgadillo, supra, 14 Cal.5th at p. 232.) Although this case does not call for us to do so, we have independently examined the record for potential error and find no arguable error that would result in a disposition more favorable to defendant. It is well settled that section 1172.6 precludes relief as a matter of law where the record of conviction shows a defendant was the sole perpetrator and actual killer. In Delgadillo, for example, our Supreme Court determined that the defendant was "not entitled to any relief under section 1172.6" because he "was the actual killer and the only participant in the killing." (Delgadillo, supra, at p. 233; see also People v. Garcia (2022) 82 Cal.App.5th 956, 969 [affirming denial of resentencing because the record of conviction "unequivocally establishes" the defendant was the sole perpetrator and the actual killer]; People v. Harden (2022) 81 Cal.App.5th 45, 47-48 [petition for resentencing may be summarily denied when, without factfinding, weighing conflicting evidence, or making credibility determinations, the record of conviction irrefutably establishes as a matter of law that the jury determined the defendant was the actual killer].)
The trial court here presumably examined the jury instructions and defendant's record of conviction and determined, without finding facts or relying on our prior appellate opinion, that the jury necessarily found defendant was the actual killer. We have reviewed the jury instructions and reach the same conclusion. The jury here was not instructed on aiding and abetting, felony murder, natural and probable consequences, or any other theory by which malice could be imputed to defendant. Defendant admitted to solely shooting the victim. As the actual killer, defendant is not entitled to relief as a matter of law. (§ 1172.6; Delgadillo, supra, 14 Cal.5th at p. 233.) To be eligible for relief under section 1172.6, the petitioner must make a prima facie showing that he or she "could not presently be convicted of murder . . . because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).) Defendant cannot make this showing.
IV. DISPOSITION
The trial court's postjudgment order denying defendant's section 1172.6 petition for resentencing is affirmed.
We concur: RAMIREZ P. J., McKINSTER J.