People v. Thalheimer CA2/7 ( 2022 )

Filed 2/7/22 P. v. Thalheimer CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B312906
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA059953-02)
v.
JUSTIN THALHEIMER,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed.
Justin Thalheimer, in pro. per., and Allen G. Weinberg,
under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Plaintiff and Respondent.
________________
Justin Thalheimer, convicted of first degree premeditated
murder following a jury trial in 2010 and sentenced to an
indeterminate state prison term of 76 years to life under the
three strikes law, petitioned for resentencing pursuant to Penal
Code section 1170.951 on April 26, 2021. Thalheimer included
with his filing a second petition for resentencing, purportedly
pursuant to former section 1170, subdivision (d)(1) (now
section 1170.03, subdivision (a)(1)),2 although no recommendation
for resentencing had been submitted to the court by the Secretary
of the California Department of Corrections and Rehabilitation
(CDCR) or the Los Angeles County District Attorney.
The superior court summarily denied Thalheimer’s
section 1170.95 petition, ruling he was ineligible for relief as a
matter of law based on his conviction for first degree murder and
the jury’s finding he had personally used a knife during the
commission of the murder. The court did not rule on the request
for resentencing under former section 1170, subdivision (d)(1).
No arguable issues were identified following review of the
record by Thalheimer’s appointed appellate counsel. We also
have identified no arguable issues after our own independent
1 Statutory references are to this code.
2 Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3) removed the
sentencing recall provisions from section 1170, subdivision (d)(1).
Assembly Bill No. 1540 (Stats. 2021, ch. 719, § 3) added
section 1170.03 as a stand-alone provision governing the recall of
felony sentences. Many of the provisions from section 1170,
subdivision (d)(1), including those pertinent to Thalheimer’s
appeal, were transferred to section 1170.03.
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review of the record 3 and analysis of the contentions presented by
Thalheimer in his supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Thalheimer’s Conviction for First Degree Murder
As summarized in our opinion affirming Thalheimer’s
conviction for first degree murder (People v. Marez (Feb. 8, 2012,
B224440) [nonpub. opn.]), Thalheimer, Quinn Alexander Marez
and Marez’s girlfriend, Emily Kent, all of whom were living on
the street, were drinking with their acquaintance Daniel Koch at
a picnic table in a park when Koch became belligerent and
started cursing at Kent. Marez, enraged by Koch’s words and
conduct, was prevented by another individual at the scene from
attacking Koch. Marez, Thalheimer and Kent then left the area.
Marez, still upset with Koch, and Thalheimer returned to
the picnic table a short while later. A fight ensued. Marez struck
Koch with the large flashlight he had been carrying. Thalheimer
repeatedly stabbed Koch with a blade from his Leatherman tool.
Koch’s body was found the following day near the picnic table.
He died from a combination of sharp and blunt force trauma.
Marez and Thalheimer both testified in their own defense.
Marez contended he had bludgeoned Koch with the flashlight in
3 Although the superior court erred in denying Thalheimer’s
petition without appointing counsel (People v. Lewis (2021)
11 Cal.5th 952, 963 [“petitioners who file a complying petition
requesting counsel are to receive counsel upon the filing of a
compliant petition”]), the error was harmless because Thalheimer
was convicted of first degree premeditated murder as either the
actual killer or a direct aider and abettor acting with express
malice, making him ineligible for resentencing under
section 1170.95 as a matter of law.
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the heat of passion or in imperfect self-defense, triggered by
Koch's belligerent behavior towards Kent and by Marez’s memory
of Koch’s attempt to sexually molest him several years earlier.
Marez said Thalheimer had stabbed Koch. Thalheimer insisted
he had neither stabbed nor otherwise participated in killing
Koch. Instead, it was Marez who both battered Koch with the
flashlight and stabbed him with the Leatherman tool.
The prosecutor’s theory, as presented to the jury, was that
Marez and Thalheimer together committed the deliberate and
premeditated murder of Koch because they were upset about his
behavior toward Kent: Marez used his Maglite flashlight to
repeatedly bludgeon Koch, and Thalheimer used his Leatherman
tool to stab Koch multiple times. Alternatively, the prosecutor
theorized Marez committed the murder and Thalheimer aided
and abetted its commission by stabbing Koch as directed by
Marez. The jury was instructed on the elements of murder and
the principles of aiding and abetting. No instruction on the
felony-murder rule or the natural and probable consequences
doctrine was given.
The jury found both men guilty of first degree murder
(§ 187, subd. (a)) and found true the allegation Thalheimer had
personally used a deadly weapon, a knife, in committing the
offense (§ 12022, subd. (b)(1)). In a bifurcated proceeding the
trial court found true the allegation that Thalheimer had suffered
two prior juvenile adjudications that qualified as strikes under
the three strikes law. Thalheimer was sentenced to an aggregate
indeterminate state prison term of 76 years to life, 75 years to life
for first degree murder plus one year for the weapon
enhancement.
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2. Thalheimer’s Petitions for Resentencing
On April 26, 2021 Thalheimer petitioned for resentencing
pursuant to section 1170.95 and checked the boxes on a form
petition declaring he had been convicted of murder pursuant to
the felony-murder rule or the natural and probable consequences
doctrine and could not now be convicted of murder because of
changes made to sections 188 and 189 by Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015). Thalheimer
requested appointment of counsel.
Thalheimer apparently included with his section 1170.95
petition a second form petition, titled “Verified Petition for
Resentencing (Penal Code § 1170(d)(1)) [Informal Request] Filed
Ex Parte],” in which he requested resentencing due to recent
changes in the law including Senate Bill No. 620, which made
discretionary the imposition of previously mandatory firearm-use
enhancements under sections 12022.5 and 12022.53, neither of
which had been included in Thalheimer’s sentence.4
On April 27, 2021 the superior court formally noted the
filing the prior day of Thalheimer’s section 1170.95 petition and
the assignment of the matter to Department NV-S. The minute
order did not mention a separate section 1170, subdivision (d)(1),
petition.
On May 5, 2021 the superior court denied the request for
appointment of counsel and summarily denied Thalheimer’s
section 1170.95 petition. Attaching a copy of the jury verdict
form dated February 11, 2010 to its order, the court explained,
4 The section 1170, subdivision (d)(1), petition does not have
a separate filed stamp and is included in the clerk’s transcript on
appeal as if it was an attachment or exhibit to the
section 1170.95 petition.
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“The jury in this case found the defendant guilty of First Degree
Murder. Additionally, the jury found the allegation pursuant to
PC 12022(b)(1) that the defendant personally used a deadly and
dangerous weapon, to wit, a knife to be true. [¶] . . . [T]he
conviction sustained by the defendant does NOT fall within the
meaning of PC 1170.95.”
Thalheimer filed a timely notice of appeal.
DISCUSSION
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Thalheimer on
appeal. After reviewing the record, Thalheimer’s counsel on
December 14, 2021 filed a brief raising no issues and advised
Thalheimer he could submit a supplemental brief raising any
grounds of appeal, contentions or arguments he wanted the court
to consider.
On January 12, 2022 we received a two-page handwritten
letter brief from Thalheimer. (The supplemental letter brief also
attached a copy of a letter Thalheimer sent to the Los Angeles
County District Attorney on May 25, 2021 requesting that the
District Attorney recommend Thalheimer for resentencing
pursuant to former section 1170, subdivision (d)(1).)
Thalheimer’s supplemental brief questioned the failure of the
superior court to rule on his petition for resentencing under
former section 1170, subdivision (d)(1). It did not address the
superior court’s denial of his petition for resentencing under
section 1170.95.
Former section 1170, subdivision (d)(1), the basis for
Thalheimer’s second petition, authorized the superior court to
recall a defendant’s sentence and impose a new sentence based on
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positive postconviction developments “within 120 days of the date
of commitment on its own motion, or at any time upon the
recommendation of the secretary [of the CDCR] or the Board of
Parole Hearings in the case of state prison inmates.”
Thalheimer’s petition was filed years past the court’s 120-day
statutory deadline to act on its own motion, and no
recommendation for resentencing was made to the superior court
by an authorized person or entity. Accordingly, the court lacked
authority to rule on Thalheimer’s request, and we have no
jurisdiction on appeal to review the superior court’s action or
inaction on the petition. (See People v. Torres (2020)
44 Cal.App.5th 1081, 1084 [“[i]f the trial court does not have
jurisdiction to rule on a motion to vacate or modify a sentence, an
order denying such a motion is nonappealable, and any appeal
from such an order must be dismissed”].)
Because no cognizable legal issues have been raised by
Thalheimer’s appellate counsel or by Thalheimer or identified in
our independent review of the record, the order denying the
postjudgment motion is affirmed. (See People v. Cole, supra,
52 Cal.App.5th at pp. 1039-1040, review granted; see also People
v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People
v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979)
25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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