People v. Evans CA2/4 ( 2021 )

Filed 10/28/21 P. v. Evans CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B309393
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A776569)
v.
KENNETH EVANS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Renee Korn, Judge. Affirmed.
Roberta Simon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Respondent.
BACKGROUND
In 1987, a jury found appellant Kenneth Evans guilty
of murder and two counts of attempted murder. The jury
found true allegations that appellant personally used a
firearm in the commission of all three offenses. According to
the evidence at trial, appellant shot multiple members of a
rival gang, killing one and injuring two others.1 Following
his conviction, appellant was sentenced to 27 years to life in
prison.
In 2019, appellant filed a petition for relief under Penal
Code section 1170.95, asking the court to vacate his murder
conviction under Senate Bill No. 1437 (2017-2018 Reg.
Sess.), which eliminated the natural and probable
consequences theory as a basis for murder liability and
narrowed the felony murder rule. (People v. Johns (2020) 50
Cal.App.5th 46, 57-58.) The superior court appointed
counsel for appellant. The prosecution filed an opposition,
arguing that appellant was ineligible for relief because the
record of conviction established that appellant was the
actual killer, and thus that he was not convicted based on
the natural and probable consequences theory or the felony
murder rule. Appellant’s counsel filed no reply.
In November 2020, the superior court denied
appellant’s petition, concluding he had failed to make a
prima facie showing of eligibility for relief because he was
1 Four eyewitnesses identified appellant as the shooter at
trial.
convicted as “the actual shooter and killer.” Appellant
timely appealed.
DISCUSSION
Appellant’s appointed counsel filed a brief raising no
issues. We directed counsel to send the record and a copy of
the brief to appellant, and notified appellant of his right to
respond within 30 days. We have received no response.
Under People v. Serrano (2012) 211 Cal.App.4th 496,
when appointed counsel raises no issue in an appeal from a
post-judgment proceeding following a first appeal as of right,
an appellate court need not independently review the record.
(Id. at 498.) Whether Serrano applies to appeals from the
denial of petitions for relief under Penal Code section
1170.95 is currently pending before the California Supreme
Court in People v. Delgadillo, review granted February 17,
2021, S266305. At appellant’s counsel’s request, we
independently reviewed the record. Our review revealed no
arguable issue.
“Effective January 1, 2019, the Legislature passed
Senate Bill 1437 ‘to amend the felony murder rule and the
natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to
human life.’ [Citation.] In addition to substantively
amending sections 188 and 189 of the Penal Code, Senate
Bill 1437 added section 1170.95, which provides a procedure
for convicted murderers who could not be convicted under
the law as amended to retroactively seek relief.” (People v.
Lewis (2021) 11 Cal.5th 952, 959.) The evidence at trial and
the jury’s findings regarding appellant’s personal use of a
firearm establish that he was convicted of murder as the
actual killer. Moreover, appellant’s convictions for
attempted murder establish that he acted with the intent to
kill. (See People v. Canizales (2019) 7 Cal.5th 591, 602
[specific intent to kill is element of attempted murder].)
Accordingly, the superior court did not err in denying
appellant’s petition under Penal Code section 1170.95.
DISPOSITION
The superior court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.