People v. Harbin CA1/1 ( 2021 )

Filed 4/27/21 P. v. Harbin CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A161289
v.
JERRY L. HARBIN, JR., (Alameda County
Super. Ct. No. 604145B)
Defendant and Appellant.
Jerry Harbin was convicted of voluntary manslaughter following a plea.
The Legislature subsequently enacted Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (Senate Bill No. 1437), which altered liability for murder under the
theories of felony murder and natural and probable consequences. The bill
also established a procedure, under newly enacted Penal Code1
section 1170.95, for eligible defendants to petition for recall and resentencing.
Harbin filed a petition for relief, and the trial court denied it on the basis that
section 1170.95 does not apply to defendants convicted of voluntary
manslaughter.
Harbin appealed from the order denying his section 1170.95 petition,
and his appellate counsel filed a brief asking this court to conduct an
independent review of the record for arguable issues. Harbin was informed
1 All further statutory references are to the Penal Code.
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he could file a supplemental brief but did not do so. We agree with the trial
court that section 1170.95 does not afford relief to defendants convicted of
voluntary manslaughter, and we therefore affirm.
I.
BACKGROUND
In 2015, Chyemil Pierce was killed in the crossfire between two groups
of men, including Harbin.2 Harbin did not fire the shot that killed her. He
and several other participants were charged with murder, and a jury trial
occurred in 2017.3 The jury convicted Harbin of possession of a firearm by a
felon but deadlocked on the murder charge, and he pleaded no contest to
voluntary manslaughter and other crimes.4 He was sentenced to 13 years in
prison.
In February 2019, shortly after Senate Bill No. 1437 took effect, Harbin
filed a petition averring he was entitled to relief under section 1170.95 and
requesting counsel. The trial court appointed counsel and ordered the
prosecution to file a response to the petition. In its response, the prosecution
argued that Harbin was ineligible for relief because he “was convicted of
manslaughter, not murder.”
2 Some of the facts in this section are taken from the probation report.
3We previously affirmed judgments against the three other men with
whom Harbin was tried, Alex Davis, Michael Stills, Jr., and Anthony Sims.
(People v. Sims (Sept. 4, 2020, A155339) [nonpub. opn.]; People v. Davis
(Mar. 27, 2019, A152259, A153136) [nonpub. opn.].) The direct appeal of
Shelton McDaniels, another co-defendant who was tried separately, is
currently pending in this division. (People v. McDaniels, A158181.) Certain
procedural facts in this section are drawn from the Davis opinion.
4 Harbin pleaded no contest to voluntary manslaughter under
section 192, subdivision (a), with an accompanying enhancement for personal
use of a firearm under section 12022.5, subdivision (a). He was also convicted
of possession of a firearm by a felon under section 29800, subdivision (a)(1),
and pleaded no contest to other charges arising from his arrest.
2
At an October 2020 hearing on the petition, Harbin’s attorney stated he
had discussed with Harbin the appellate decisions addressing whether
section 1170.95 applies to those convicted of voluntary manslaughter and
“decided not to file any additional papers given the state of the law as it is
right now.” Harbin, who was present, offered his interpretation of
section 1170.95 as covering convictions after a plea to manslaughter, but the
court disagreed and denied the petition on the basis he was not convicted of
first or second degree murder.
II.
DISCUSSION
A defendant appealing from the denial of a section 1170.95 petition is
not entitled to an independent review of the record under People v. Wende
(1979) 25 Cal.3d 436 (Wende). Rather, as numerous “federal and California
opinions have repeatedly and consistently held[,] . . . an appellate court’s
obligation to conduct an independent review of the record only applies when
appointed counsel raises no arguable issues in a criminal defendant’s first
appeal as a matter of right.” (People v. Flores (2020) 54 Cal.App.5th 266,
271.)
Accordingly, instead of seeking Wende review, Harbin’s appellate
counsel contends that this court “should conduct an independent review of
the record for arguable issues” under Flores. Flores determined that, in the
interests of justice, “an appellate court can and should independently review
the record on appeal when an indigent defendant’s appointed counsel has
filed a Wende brief in a postjudgment appeal from a summary denial of a
section 1170.95 petition.” (People v. Flores, supra, 54 Cal.App.5th at pp. 273–
274; accord People v. Gallo (2020) 57 Cal.App.5th 594, 599.) Other decisions,
however, have declined to conduct an independent review as a matter of
course. Rather, they have concluded that if counsel files a no-issues brief, the
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better procedure is to provide an opportunity to file a supplemental brief and,
if the defendant does not do so, dismiss the appeal as abandoned without
conducting an independent review. (People v. Cole (2020) 52 Cal.App.5th
1023, 1028, review granted Oct. 14, 2020, S264278; accord People v. Figueras
(2021) 61 Cal.App.5th 108, 112–113; People v. Scott (2020) 58 Cal.App.5th
1127, 1129–1130, review granted Mar. 17, 2021, S266853.)5
Here, we have reviewed the record and conclude that no arguable
issues exist. Harbin is ineligible for relief as a matter of law because, as
numerous decisions have held, a person convicted of voluntary manslaughter
is not entitled to relief under section 1170.95’s plain terms. (E.g., People v.
Paige (2020) 51 Cal.App.5th 194, 197–198, 202; People v. Sanchez (2020)
48 Cal.App.5th 914, 916; People v. Cervantes (2020) 44 Cal.App.5th 884, 887.)
Thus, any error that could have occurred in the petition’s denial was
harmless.
III.
DISPOSITION
The October 1, 2020 order denying Harbin’s section 1170.95 petition is
affirmed.
5 After the Supreme Court granted review on a different issue in People
v. Cole, supra, 52 Cal.App.5th 1023, it granted review in another case to
consider what procedures apply when appellate counsel determines that an
appeal from an order denying postconviction relief lacks merit. (People v.
Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb. 17,
2021, S266305.) In People v. Scott, supra, 58 Cal.App.5th 1127, review on
this issue was granted and held for Delgadillo.
4
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Sanchez, J.
People v. Harbin A161289
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