Filed 8/12/22 P. v. Cartwright CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Donald Ray Cartwright appeals from an order denying his petition to vacate his murder conviction and to be resentenced pursuant to Penal Code section 1170.95.[1]

In 1986, the People filed an information charging appellant and a codefendant with murder (§ 187). As to appellant only, the People alleged that he personally used a firearm during the offense (§ 12022.5). As to defendant’s codefendant, the People alleged that he was armed, or that a principal was armed, with a firearm (§ 12022, subd. (a)). The facts underlying the crime are set out in our prior appellate opinion. (People v. Cartwright (June 26, 1989, A039585) [nonpub. opn.].) Briefly, the facts are as follows. One evening in May 1986, a white car and a brown car pulled up to a bus stop. Several occupants, including appellant, exited one of the cars and talked with a group of people at the bus stop, who then started running. Someone opened the hood of the brown car, retrieved a handgun, and handed it to appellant. From what seemed like an empty lot next to a store, a person whom appellant identified as Donnell W.[2] fired a shot and injured appellant’s cousin. Appellant, by his own admission, fired shots as he and others drove away in the brown car. Appellant also admitted that a few hours later, he and his future codefendant drove past the aforementioned store where he saw some men but not Donnell W. As they drove past the store, appellant told his codefendant to back up. Appellant then fired two shots “in the air” to “scare the people” and to have them “deliver a message to [Donnell W.]” Kerry Threets, a college student, was fatally shot as he exited the store.

The jury in appellant’s case was instructed on principles of murder and manslaughter. The instructions on murder included instructions regarding first and second degree murder, and the principle that first degree murder is a willful, deliberate and premeditated killing with express malice. The jury was also instructed that it could find the personal use allegation true only if there was proof beyond a reasonable doubt that appellant personally used a firearm. The jury convicted appellant of first degree murder (§ 187) and found true the allegation that appellant used a handgun during the commission of the offense (§ 12022.5).

Appellant filed several petitions seeking resentencing pursuant to former section 1170.95. His November 2019 and January 2020 petitions were denied without a hearing on the grounds that appellant failed to state a prima facie case for relief because he was the actual killer. Subsequently, the California Supreme Court clarified that “petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition [citation] and that only after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether ‘the petitioner makes a prima facie showing that he or she is entitled to relief.’ ([Former] § 1170.95, subd. (c).)” (People v. Lewis (2021) 11 Cal.5th 952, 957.) Accordingly, the trial court issued an order appointing counsel and requesting further briefing when appellant filed a petition in August 2021.

In opposing appellant’s petition, the People’s brief attached the jury instructions given at appellant’s trial, which indicated that the jury was instructed only on the theories of express and implied malice murder and received no instructions on the natural and probable consequences doctrine or on felony murder. As such, the People argued, the jury could only have convicted appellant of first degree murder under a theory of premeditation and deliberation.

Appellant did not counter the People’s assertions, either in his reply brief or at the hearing on the petition. Instead, he argued that an order to show cause should issue because he met the low standard for making a prima facie showing for relief. The trial court disagreed, reasoning that the jury clearly viewed appellant as the actual shooter because it found him guilty without having been instructed on felony murder or the natural and probable consequences doctrine. This timely appeal followed.

Appellant’s court-appointed counsel has filed a brief raising no issues and seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Accompanying that brief is a declaration from counsel indicating that: she reviewed the record and found no arguable issues; she informed appellant of her findings and views and advised him of his right to submit “a written statement of any issues which he wishes to call to the court’s attention within 30 days”; she sent him the record in the case; and she informed him that he could request the court to relieve her as counsel. A proof of service accompanying the brief indicates that it was served on appellant by mail on June 21, 2022. More than 30 days has elapsed, and appellant has not filed a supplemental brief.

A threshold question in this case is whether Wende requires our independent review of the record. We think not.

A Wende review is not required “other than in the first appeal of right from a criminal conviction.” (People v. Serrano (2012) 211 Cal.App.4th 496, 500 (Serrano); Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536–537.) “In all future criminal appeals arising from proceedings other than the first appeal of right, where appointed counsel finds no arguable issues, counsel need not and should not file a motion to withdraw. Instead, counsel should (1) inform the court he or she has found no arguable issues to be pursued on appeal and (2) file a brief setting out the applicable facts and the law. Such a brief will provide an adequate basis for the court to dismiss the appeal on its own motion.” (Serrano, at p. 503, italics added.) As relevant here, the California Supreme Court has stated: “An appealed-from judgment or order is presumed correct. [Citation.] Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect [citation], and ‘present argument and authority on each point made’ [citations]. If he does not, he may, in the court’s discretion, be deemed to have abandoned his appeal. [Citation.] In that event, it may order dismissal.” (In re Sade C. (1996) 13 Cal.4th 952, 994.)

Appellant’s counsel acknowledges the Wende procedure does not generally extend to cases such as this, which is not a first appeal of right. Nevertheless, counsel urges us to undertake a Wende review.

Dismissal of the appeal appears appropriate because appellant has not personally filed a supplemental brief. (Serrano, supra, 211 Cal.App.4th at p. 503.) However, in an abundance of caution and because the Supreme Court has granted review concerning the applicability of Wende procedures in appeals from orders denying postconviction relief,[3] we have exercised our discretion to independently review the record for potentially arguable issues. In doing so, we have found no reasonably arguable appellate issue. (People v. Kelly (2006) 40 Cal.4th 106, 124.)

Disposition

The order of the trial court is affirmed.

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Fujisaki, J.

WE CONCUR:

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Tucher, P.J.

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Rodríguez, J.

People v. Cartwright (A164838)

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

Section 1170.95 was recently renumbered to section 1172.6 while this appeal was pending. (Stats. 2022, ch. 58, § 10.) Since section 1170.95 was the correct statutory designation at the time of the underlying proceedings and since the parties and the trial court below referred to that statute, we will continue to refer to section 1170.95 as well. Where appropriate, however, we will also refer to section 1172.6 in supplementing citations to section 1170.95.

[2] Pursuant to the California Rules of Court, rule 8.90, governing “Privacy in opinions,” we will refer to Donnell W. by his first name and last initial only.

[3] (People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb. 17, 2021, S266305.)