Filed 2/15/22 P. v. Evans CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
| THE PEOPLE,
Plaintiff and Respondent,
v.
JEFFREY EVANS,
Defendant and Appellant.
| B312560
(Los Angeles County Super. Ct. No. A710700) |
APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Dismissed.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
In 1989, a jury found defendant Jeffrey Evans guilty of second degree murder (Pen. Code, § 187, subd. (a))[1] and unpremeditated attempted murder (§§ 664, 187). It found true an allegation that defendant had personally used a firearm in connection with the attempted murder and also found true a prior serious felony allegation. The trial court sentenced defendant to an aggregate term of 16 years plus 15 years to life in prison.
On July 15, 1991, a prior panel of this Division affirmed defendant’s conviction with modifications in an unpublished opinion. (See People v. Elliott (July 15, 1991, B044703) [nonpub. opn.].) As described in that opinion, “[t]his case involves two gang-related shootings occurring the same night . . . [¶] . . . [Codefendant John Henry] Tanner and [defendant were] associated with Crips gangs. The victim of the attempted murder, Cedric Finley, [was] associated with a Bloods gang. The murder victim, John Shaw, was shot after failing to give a sufficiently respectful answer to [defendant and his codefendants’] inquiries of his affiliation. [¶] . . . [¶]
“ . . .Tanner [was] a member of the Venice Shoreline Crips. [Defendant was] a member of the Original Valley Gangster (OVG) Crips. Shortly after the [shooting of attempted murder victim Finley], [codefendant Dennis Marlin] Elliot, Tanner and [defendant] drove in Elliott’s Suzuki to a party in Sylmar. John Shaw was standing outside. [Defendant] approached Shaw and identified himself as OVG Crip. Shaw replied, ‘So what, I don’t bang’ or ‘I don’t care about no Crip or no Blood because I don’t bang.’ ‘I don’t bang’ meant Shaw was not a gang member. Shaw’s response, in effect, ‘So what, I don’t’ care,’ was considered by the gang to be a disrespectful challenge. One of the [trial defendants] said, ‘Can’t talk like that to my homeboy.’ [Defendant] took off his jacket and began circling Shaw, saying ‘Me and you are about to fight.’
“Instead of fighting, Shaw ran away, toward a house. . . . Tanner, standing behind [defendant], said ‘Give me the gun, Cuz, give me the gun.’ Tanner obtained a gun from behind [defendant’s] back and fired at the fleeing Shaw five or six times. Shaw died of a single through and through gunshot wound. The shot entered the back and exited the front chest.”
On January 7, 2019, defendant filed a petition to vacate his murder conviction and for resentencing pursuant to section 1170.95. On March 1, 2019, the trial court appointed counsel to represent defendant.
On July 1, 2020, the Los Angeles County District Attorney’s Office filed a response to defendant’s petition, arguing that the trial court should deny the petition because defendant was a direct aider and abettor of the murder and thus ineligible for relief under section 1170.95.
On January 15, 2021, defendant, through counsel, submitted a brief requesting that the trial court issue an order to show cause.
On January 15, 2021, the trial court issued an order to show cause and set a hearing on defendant’s petition, which was heard on April 1, 2021.[2] On April 1, 2021, following argument by the parties, the trial court denied the petition. The court stated that it was acting as an independent factfinder and that based on its review of the petition, the briefing, and the record of conviction, including transcripts from defendant’s trial and the appellate opinion, it concluded that the evidence established beyond a reasonable doubt that the defendant acted with express or implied malice and thus remained guilty of murder under current law. Defendant timely appealed.
We appointed counsel to represent defendant on appeal. On October 28, 2021, counsel filed an opening brief in which counsel did not identify any arguable issues and requested that we follow the procedure set forth in People v. Wende (1979) 25 Cal.3d 436, 441. (See also People v. Serrano (2012) 211 Cal.App.4th 496, 503.)
On October 29, 2021, we notified defendant that appointed appellate counsel had failed to find any arguable issues and he had 30 days within which to independently brief any grounds for appeal, contentions, or arguments he wanted us to consider. Defendant did not file a supplemental brief. Because defendant has appealed the denial of postconviction relief and has not filed a supplemental brief, we dismiss his appeal as abandoned. (People v. Cole (2020) 52 Cal.App.5th 1023, 1039–1040, review granted Oct. 14, 2020, S264278.)
Disposition
The appeal is dismissed as abandoned.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
[1] Further statutory references are to the Penal Code.
[2] Defendant was on parole by the time of the hearing.
