Filed 2/15/22 P. v. Harville CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Bryan F. Foster, Judge. Affirmed.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I.

INTRODUCTION

Defendant and appellant Kevin Harville appeals from a post-judgment order denying his Penal Code^[1] section 1170.95 petition to vacate his second degree murder conviction and obtain resentencing relief under the procedures established by Senate Bill No. 1437. 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, 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 done so. We find no error and affirm the order.

II.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

Defendant and the attempted murder victim (the first victim) cohabitated and had an intimate relationship for two months beginning in June 2006. Soon thereafter, in late June, defendant became possessive, controlling, and violent with her. He did not want her to go anywhere, kept track of all her comings and goings, and took over management of the household, to which he contributed nothing financially. After the first victim broke up with defendant, he did not take it well. He threatened and stalked her for several months until the incident leading to the charges. (Harville I, supra, 2011 WL 193445, *2.)

In October 2006, the first victim was home getting ready to drop her children off at their grandmother’s house, then go on to work. Defendant came onto her property and began knocking on her bedroom window, then on her front door. She opened her front door, but because she was afraid of defendant, she kept the security screen door closed and locked and spoke to him through it. Defendant asked her to come outside and she refused. He asked her if she was dating anyone and she said she was. Defendant appeared to be upset and asked if this person was in the house. She told defendant she had to go to work and closed her front door. Defendant drove away from the premises, burning rubber as he went. (Harville I, supra, 2011 WL 193445, *2.)

As the first victim was on her way to work, she saw defendant’s vehicle behind her and to the right. Both turned right onto the short on-ramp to the Interstate 215 Freeway south. While on the on-ramp, defendant rammed the rear right side of her vehicle with the left front of his vehicle. She called 911 either at this point or after defendant had rammed her a second time. Once on the freeway, defendant stayed to the right of her vehicle, which had the passenger window down. Defendant kept yelling at her to pull over. While on call with 911, defendant rammed her vehicle several times. She tried to avoid getting hit and hitting others, including by pulling on to the shoulder, but defendant came at her repeatedly. Defendant rammed her from the side at least three more times in addition to the first two times. She sped up to get away from defendant, who stopped on the freeway, then took off at an angle, coming across the freeway towards the median, hitting the front of her car causing her to slam on her brakes. Defendant’s vehicle continued across the number one lane in front of her vehicle, hit the median, flipped over it and landed on its roof on the northbound side of Interstate 215. (Harville I, supra, 2011 WL 193445, *2-*3.)

When defendant’s car hit the northbound lane, it exploded and parts went everywhere, including the battery, which crashed through the windshield of a truck coming up behind defendant’s vehicle, hitting the driver of the truck and killing him (defendant’s second victim). (Harville I, supra, 2011 WL 193445, *2-*3.)

A jury convicted defendant of second degree murder (§ 187, subd. (a)), attempted willful, premeditated and deliberate murder (§§ 664 & 187, subd. (a)), during both of which he used a deadly weapon (§ 12022, subd. (b)(1)), and assault with a deadly weapon (§ 245, subd. (a)(1)). He was sentenced to prison for 11 years plus 45 years to life. (Harville I, supra, 2011 WL 193445, *1.)

Defendant subsequently appealed, contending, among others, that there was insufficient evidence to support his conviction for attempted murder. On January 21, 2011, we concluded there was sufficient evidence, affirmed the judgment, and directed the trial court to amend the abstract of judgment and minutes of the sentencing hearing. (Harville I, supra, 2011 WL 193445, *1-*8.)

Following enactment of Senate Bill No. 1437, on February 11, 2019, defendant filed a petition for resentencing pursuant to section 1170.95, subdivision (a). On June 7, 2019, the trial court granted the People’s motion to strike defendant’s petition, finding Senate Bill No. 1437 was unconstitutional.

On August 12, 2020, in a nonpublished opinion, we reversed the trial court’s order striking defendant’s petition and remanded the matter for further proceedings pursuant to section 1170.95. (People v. Harville (Aug. 12, 2020, E072967), [nonpub. opn.] 2020 WL 4668399.)

Following remand, on October 7, 2021, the trial court heard argument on defendant’s petition. Defendant’s counsel argued that the prosecution’s theory at trial as to the murder was transferred intent, but the jury found him guilty of second degree murder rather than first degree murder. Due to the purported ambiguity with regard to the verdict, defense counsel thus believed the court should set the matter for an evidentiary hearing. The prosecutor responded that it was clear the jury reached a compromised verdict, but because defendant was the actual killer he had not made a prima facie showing that he was eligible for resentencing relief. The trial court concluded that defendant had not made the requisite prima facie showing entitling him to relief and denied the petition. Defendant timely appealed.

III.

DISCUSSION

After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, setting forth a statement of the case, a summary of the procedural background and potential arguable issues, and requesting this court to conduct an independent review of the record.

As previously noted, we offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental brief, defendant raises the same issues (without argument) as pointed out by his appointed appellate counsel related to the applicability of Senate Bill No. 1437 and section 1170.95 to his case, whether he was denied his constitutional rights due to his absence at the hearing or having waived his right to be present at the hearing on his petition, and whether the superior court improperly engaged in factfinding in reviewing the record of conviction and concluding he was not entitled to relief.

Section 1170.95, which was added by Senate Bill No. 1437 (Stats. 2018, ch. 15, § 4) and amended by Senate Bill No. 775, provides: “A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is implied to a person based solely on that person’s participation in a crime, attempted murder under the natural and probably consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts. . . .” (§ 1170.95, subd. (a); see People v. Martinez (2019) 31 Cal.App.5th 719, 722.) The petition must make a prima facie showing that the petitioner falls within the provisions of this section. (§ 1170.95, subd. (c); People v. Ramirez (2019) 41 Cal.App.5th 923, 929-930.)

Here, it is undisputed that defendant was not tried or convicted under felony murder or a natural and probable consequences theory, and therefore is ineligible for relief. Defendant’s record of conviction clearly shows that he was the actual killer.^[3]

We have examined the entire record and are satisfied that appointed counsel fully complied with her responsibilities and that no arguable appellate issues exist. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende, supra, 25 Cal.3d 436.)

IV.

DISPOSITION

The trial court’s order denying defendant’s section 1170.95 petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.

^[1] All future statutory references are to the Penal Code.

^[2] A truncated version of the factual background is taken from this court’s nonpublished opinion from defendant’s direct appeal, case No. E049214. (People v. Harville (Jan. 21, 2011, E049214) [nonpub. opn.] 2011 WL 193445 (Harville I).)

^[3] We note that since defendant petitioned for resentencing relief under section 1170.95, the Legislature has passed and the Governor has signed Senate Bill No. 775 (2020-2021 Reg. Sess.), which took effect on January 1, 2022. As noted, Senate Bill No. 775 amends section 1170.95 in various ways, and the most significant for our purposes is an amendment that expressly permits defendants convicted of attempted murder to seek relief. (Stats. 2021, ch. 551, § 2.) However, because defendant was the actual killer, Senate Bill No. 775 would not apply to defendant’s attempted murder conviction.