Opinion
B320378
05-11-2023
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR TORLUCCI, Defendant and Appellant.
NOT TO BE PUBLISHED
(Los Angeles County Super. Ct. No. BA126357)
THE COURT:
Arthur Torlucci (defendant) appeals the orders of the superior court denying his petitions for resentencing under Penal Code section 1172.6 (former section 1170.95). We appointed counsel to represent defendant on appeal. After an examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. Defendant filed his own supplemental brief, in propria persona. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). For clarity, we refer to the section by its new numbering only.
We draw these facts from the documents submitted to the trial court and this court's prior unpublished decision affirming the denial of defendant's first motion for relief under section 1172.6. (People v. Torlucci (Oct. 23, 2020, B299582) [nonpub. opn.].)
On January 14, 1996, defendant was in the driver's seat of his pickup truck while James Daniels (Daniels) leaned into the passenger-side window. Defendant began driving with Daniels still hanging out of the window. Defendant swerved for more than a block, then smashed the passenger side of the truck against six parked cars, crushing and killing Daniels. A jury found defendant guilty of second degree murder and found true the allegation that he used a dangerous and deadly weapon- namely, the truck-in committing the offense. (§§ 187, subd. (a), 12022, subd. (b).) Defendant appealed, and we affirmed the conviction in an unpublished opinion.
On May 14, 2019, defendant filed his first petition for resentencing pursuant to section 1172.6 in propria persona. The trial court summarily denied defendant's petition, concluding that defendant was "specifically excluded from sentencing relief" under section 1172.6 because he was "the actual killer." On August 8, 2019, defendant filed what he styled as a "motion to reconsider" the petition for resentencing; the trial court interpreted it as a second, separate petition for resentencing and denied the motion, again finding that defendant was "ineligible" for relief because he was "the actual killer." Defendant appealed, and we affirmed the denial. Defendant then filed a petition for review with the California Supreme Court. Our Supreme Court granted review but held the matter pending the disposition in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), then later dismissed the petition.
On January 18, 2022, defendant filed a third petition for resentencing pursuant to section 1172.6. On March 15, 2022, the trial court summarily denied this third petition, stating "[a]s the trial court previously found and the court of [appeal] affirmed, as a matter of law, petitioner is not eligible for relief based on the record of conviction" because "the jury's findings of fact necessarily label defendant as the actual killer." Two weeks later, on March 29, defendant filed what he again apparently styled as a "motion to reconsider" the earlier denial. The trial court denied the motion to reconsider on April 19, 2022, stating that "[n]o matter how petitioner attempts to reframe the issue," he is "not entitled to relief" because he was the "actual killer."
The record on appeal does not include a copy of the document filed on March 29, 2022. However, defendant's subsequent notice of appeal states that he is appealing the order dated "April 19, 2022, on denial of motion to reconsider" (italics added).
Defendant timely filed two notices of appeal-one from the March 15 denial of the petition, and the other from the April 19 denial of the motion for reconsideration.
DISCUSSION
I. Appeal of the March 15 Denial of Petition for Resentencing
Because the appeal from the March 15 denial of the petition for resentencing is not an appeal from the underlying conviction, defendant is not entitled to our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) or its federal constitutional counterpart, Anders v. California (1967) 386 U.S. 738 (Anders). (People v. Delgadillo (2022) 14 Cal.5th 216, 221-222, 224, 230; see People v. Kelly (2006) 40 Cal.4th 106, 119 (Kelly) [independent judicial review mandated by Anders applies only to first appeal as of right]; People v. Serrano (2012) 211 Cal.App.4th 496, 503 (Serrano).) However, he is entitled to appellate consideration of the arguments he raises in his supplemental brief. (See Serrano, supra, at p. 503.)
In his supplemental brief, defendant makes three claims: (1) he was not the actual killer and therefore he has made a prima facie showing of eligibility for relief under section 1172.6, (2) section 1172.6 eliminated second degree murder liability "for actual killers" and therefore his conviction must be vacated, and (3) he is entitled to present "new and additional exculpatory evidence" "at the prima facie stage" of the petition. His first argument is a collateral attack on the sufficiency of the evidence underlying the jury's verdict, which is outside the purview of section 1172.6; therefore, it is not cognizable on appeal from an order denying relief under that statute. His second and third arguments are simply wrong on the law. Section 1172.6 did not abolish second degree murder liability for actual killers. (See People v. Gentile (2020) 10 Cal.5th 830, 846-847 (Gentile), superseded by statute on other grounds as stated in People v. Hola (2022) 77 Cal.App.5th 362, 370; People v. Powell (2021) 63 Cal.App.5th 689, 713.) And while petitioners who have made a sufficient prima facie showing and have been granted an evidentiary hearing may introduce "new or additional evidence" at that hearing (§ 1172.6, subd. (d)(3); Gentile, supra, at p. 853), our Supreme Court has "assume[d]" "that petitioners may not present new evidence at the prima facie stage" (Lewis, supra, 11 Cal.5th at p. 974, fn. 7), and we see no basis to question that assumption.
In sum, based on our examination of the entire record, we are satisfied that defendant's attorney has fully complied with her responsibilities and that no arguable issues exist. (Kelly, supra, 40 Cal.4th at pp. 109-110; Wende, supra, 25 Cal.3d at p. 441.)
II. Appeal of April 19 Denial of Motion for Reconsideration
To the extent that the trial court construed defendant's March 29 petition as a motion to reconsider, the court's April 19 order is not appealable. A defendant may appeal from "any order made after judgment" that affects the "substantial rights of the party." (§ 1237, subd. (b).) However, there is a "well established qualification" that limits this right (People v. Thomas (1959) 52 Cal.2d 521, 527 (Thomas))-namely, that a post-judgment order is not appealable when it "merely asks the court to repeat or overrule" an earlier ruling "on the same facts." (People v. Palmer (1942) 49 Cal.App.2d 579, 580 (Palmer); People v. Rick (1952) 112 Cal.App.2d 410, 412; see In re Timothy N. (1975) 48 Cal.App.3d 862, 867 ["[U]nless the motion for rehearing involves entirely new, previously unlitigated issues, a party may not extend the time for appeal by moving for rehearing and attempting to appeal from the denial"].) Hearing an appeal from a denial of a motion to reconsider which did not assert new facts or argument would "'virtually allow[] two appeals from the same ruling'" (Palmer, supra, at p. 580) and would "in effect indefinitely extend the time for appeal from the judgment" (Thomas, supra, at p. 527). There is no indication that defendant presented new facts or argument in his motion for reconsideration that had not been made in the previous two section 1172.6 petitions. Therefore, the order denying defendant's motion for reconsideration is not appealable and the appeal of that order must be dismissed. (See People v. Baltazar (2020) 57 Cal.App.5th 334, 342.)
To the extent that defendant asserts that his March 29 motion was not a motion for reconsideration, but rather yet another separate petition for resentencing under section 1172.6, we are satisfied that defendant's attorney has fully complied with her responsibilities and that no arguable issues exist for the same reasons as stated above.
DISPOSITION
The orders denying defendant's petitions for resentencing pursuant to Penal Code section 1172.6 are affirmed.
ASHMANN-GERST, Acting P. J., CHAVEZ, J., HOFFSTADT, J.