People v. Griffin

• Decision Date: 14 November 2022
• Docket Number: E079269
• Citation: 85 Cal.App.5th 329,301 Cal.Rptr.3d 236
• Parties: The PEOPLE, Plaintiff and Respondent, v. Raymond GRIFFIN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

85 Cal.App.5th 329

301 Cal.Rptr.3d 236

The PEOPLE, Plaintiff and Respondent,

v.Raymond GRIFFIN, Defendant and Appellant.

E079269

Court of Appeal, Fourth District, Division 2, California.

Filed November 14, 2022

Eric R. Larson, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

OPINION

RAMIREZ, P. J.

Eight years after defendant and appellant Raymond Griffin was convicted of two counts of murder, he petitioned the trial court for resentencing pursuant to Penal Code section 1172.6.¹ That court summarily denied his petition, and defendant appealed.

Defendant's appointed appellate counsel filed an opening brief that does not raise any issues. Therein, counsel acknowledges this is not defendant's first appeal of right so we are not required to conduct an independent review of the record to determine if it contains any arguable issues, but he requests we exercise our discretion to do so. We granted that request and found no issue. Accordingly, we affirm the trial court's denial of defendant's petition.

BACKGROUND

In 2014, a jury found defendant guilty of various offenses, including two counts of first-degree murder ( § 187, subd. (a) ) with gang and multiple-murder special circumstances ( § 190.2, subds. (a)(3), (a)(22) ), and with enhancements for causing death by personally and intentionally discharging a firearm ( § 12022.53(d) ). The trial court sentenced defendant to four consecutive life terms (two without possibility of parole and two with 25-year minimum parole periods) plus seven years. In his appeal from the judgment, defendant raised several issues, including a claim that the evidence was insufficient to support the jury's finding that he was the shooter. We affirmed. (People v. Griffin (July 19, 2016, E062831) [nonpub. opn.].)

In 2018, the Legislature enacted Senate Bill 1437, which amended sections 188 and 189 to eliminate criminal liability for murder under the natural and probable consequences doctrine and to limit application of the felony murder rule to those persons who were either the actual killer, or acted with the intent to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 1, subd. (f), eff. Jan. 1, 2019.) The Legislature also added section 1172.6, which established the procedure for defendants convicted of murder prior to the amendments to petition the trial court to vacate their sentence and to be resentenced if they met the following conditions: (i) they were charged in a manner that allowed the People to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; (ii) they were convicted of first or second degree murder under one of those theories; and, (iii) they could not now be convicted of first or second degree murder because of the amendments to sections 188 and 189 that became effective on January 1, 2019.² ( § 1172.6, subd. (a).)

In February 2022, defendant filed a petition for resentencing pursuant to section 1172.6. Upon receipt of the petition, the trial court set the matter for a status conference and appointed counsel for defendant. Defendant was not present but was represented by counsel at the June 24, 2022 conference. The court found defendant was ineligible for relief because he was the actual shooter, and denied the petition. Defendant noticed this appeal.

DISCUSSION

Defendant's appointed appellate counsel has filed an opening brief that sets forth statements of the case and facts but does not present any issues for adjudication. He asks this court to exercise its discretion to independently review the record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071.

1. Availability of Wende procedures in appeals from denials of postconviction resentencing petitions

When appointed appellate counsel files a no-issues brief in a criminal defendant's appeal from the judgment of conviction, the Courts of Appeal are required (i) to offer the defendant an opportunity to submit a personal supplemental brief, (ii) to review the entire record whether or not the defendant files a brief, and (iii) to issue a written opinion. ( People v. Kelly (2006) 40 Cal.4th 106, 118-120, 51 Cal.Rptr.3d 98, 146 P.3d 547 ( Kelly ); Wende, supra , 25 Cal.3d at pp. 441-442, 158 Cal.Rptr. 839, 600 P.2d 1071.) Those procedures were adopted to ensure the protection of indigent criminal defendants' constitutional right to effective assistance of appellate counsel, a right that extends only to a direct appeal of the final judgment (the first appeal of right) in a criminal case. ( Kelly, supra , 40 Cal.4th at pp. 118-119, 51 Cal.Rptr.3d 98, 146 P.3d 547.)

Although the Courts of Appeal are not required to provide Wende protections in a postconviction appeal taken by an indigent criminal defendant from denial of a resentencing petition, they have exercised their inherent supervisory powers to decide whether and to what extent Wende procedures should be employed in those cases. ( People v. Cole (2020) 52 Cal.App.5th 1023, 1034, 267 Cal.Rptr.3d 113 ( Cole ), review granted Oct. 14, 2020, S264278.) Accordingly, in an effort to give defendants an opportunity to be heard and to avoid potential claims of ineffective assistance of counsel, courts have invited defendants to submit a supplemental brief if their appointed appellate counsel files a no-issues brief. ( People v. Scott (2020) 58 Cal.App.5th 1127, 1131, 273 Cal.Rptr.3d 105 ( Scott ), review granted Mar. 17, 2021, S266853.) If a defendant files a brief, the court is required to evaluate any arguments presented and to adjudicate the appeal in a written opinion. ( Kelly, supra , 40 Cal.4th at pp. 119-120, 124, 51 Cal.Rptr.3d 98, 146 P.3d 547 ; Cole, supra , 52 Cal.App.5th at p. 1040, 267 Cal.Rptr.3d 113.)

Appellate courts are divided, however, with respect to how a court should exercise its discretion where, as here, the defendant did not respond to the court's invitation to submit a supplemental brief. Several cases considering the issue adopted three criteria set forth in Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640, to calibrate what procedures are appropriate. (E.g., Cole, supra , 52 Cal.App.5th at p. 1037, 267 Cal.Rptr.3d 113 ; People v. Flores (2020) 54 Cal.App.5th 266, 273-274, 268 Cal.Rptr.3d 512 ( Flores ).) Those criteria are (i) the private interests at stake (the liberty interests of the defendant), (ii) the government's interests (the appellate court's interests in making sure the trial court ruled correctly while balancing fiscal and administrative concerns), and (iii) the risk the procedures used will lead to erroneous decisions. ( Flores, supra , at p. 274, 268 Cal.Rptr.3d 512.)

Some courts weighing those criteria conclude the state's interest in conserving scarce judicial resources outweighs the defendants' interest in postconviction proceedings when (i) they have already been afforded all the constitutional protections in their first appeal of right, and (ii) are represented by appointed appellate counsel who are duty-bound to carefully review the record for error. ( Cole, supra , 52 Cal.App.5th at p. 1037, 267 Cal.Rptr.3d 113 [ section 1172.6 resentencing petition]; People v. Figueras (2021) 61 Cal.App.5th 108, 112, 275 Cal.Rptr.3d 376 [ section 1172.6 resentencing petition], review granted May 12, 2021, S267870 ( Figueras ); People v. Serrano (2012) 211 Cal.App.4th 496, 502-503, 149 Cal.Rptr.3d 706 ( Serrano ) [motion to vacate conviction on grounds of no or inadequate advisement of immigrations consequences].) They opine that, in those circumstances, there is little risk of an erroneous appellate decision. ( Ibid. )

Based on their evaluation of the criteria, those courts exercised their discretion to adopt procedures applicable to postjudgment no-issues cases in which defendant's first appeal of right has already been adjudicated. They require counsel to file a brief setting out the applicable facts and law, and to inform the court that no arguable issues were found. ( Cole, supra , 52 Cal.App.5th at p. 1038, 267 Cal.Rptr.3d 113 ; Figueras, supra , 61 Cal.App.5th at p. 112, 275 Cal.Rptr.3d 376 ; Serrano, supra , 211 Cal.App.4th at p. 503, 149 Cal.Rptr.3d 706.) Defendant must then be informed of the right to file a supplemental brief either by counsel ( Cole , at p. 1028, 267 Cal.Rptr.3d 113 and Figueras , at p. 112, 275 Cal.Rptr.3d 376 ) or by the court ( Serrano , at p. 503, 149 Cal.Rptr.3d 706 ). If defendant does not submit a brief, the court will not conduct an independent review of the record, but will simply dismiss the appeal as abandoned without notice to defendant or his counsel alerting them of the court's intention to dismiss if it does not receive a supplemental brief. ( Cole , at pp. 1039-1040, 267 Cal.Rptr.3d 113 ; Figueras , at pp. 112-113, 275 Cal.Rptr.3d 376 ; Serrano , at pp. 503-504, 149 Cal.Rptr.3d 706.)

In Scott , a panel of this court generally agreed with the approach adopted by Serrano and Cole. ( Scott, supra , 58 Cal.App.5th at pp. 1130-1131, 273 Cal.Rptr.3d 105.) Unlike the courts in those cases, however, Scott explained that it does not dismiss the appeals without looking at them. ( Id. , at pp. 1131, 1135, 273 Cal.Rptr.3d 105.) It also acknowledged that justices have discretion to take on a case for full review and issue a written opinion (although it suggests they should not exercise that discretion as a routine matter). ( Ibid. )

Other courts have considered the three Lassiter criteria and concluded the defendant's liberty interests are paramount and outweigh the fiscal and administrative burden on the state of providing Wende protections in view of the risk (even a presumably low one) that a defendant may be unlawfully incarcerated on account of an unreviewed meritorious issue that was overlooked by appointed appellate counsel. ( ...