People v. Smann CA4/1 ( 2022 )

Filed 12/6/22 P. v. Smann CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080056
Plaintiff and Respondent,
v. (Super. Ct. No. SCD131901)
MON SMANN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Eugenia A. Eyherabide, Judge. Affirmed.
Kimberly J. Grove; and Anna Jauregui-Law, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Mon Smann appeals an order denying his second petition to vacate his
murder conviction and for resentencing under former Penal Code section
1170.95 (now section 1172.6).1 His appointed appellate counsel filed an
opening brief raising no arguable issues. (People v. Wende (1979) 25 Cal.3d
436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) Smann also
filed a supplemental brief on his own behalf.
We have independently reviewed the record and find no arguable issue
that would result in a modification or reversal of the trial court’s order. 2
Accordingly, we affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Smann was convicted in 2001 of two counts of first degree murder (§
187, subd. (a)) and one count of conspiracy to commit murder (§ 182, subd.
(a)(1)) based on the killing of two young men who were found dead on the
grounds of a high school in 1992 with multiple gunshot wounds. Both men
were shot below their right ears and a ligature was found around the neck of
one man. The jury made true findings that Smann was armed with a firearm
in commission of the murders (§ 12022, subd. (a)(1)) and on special
circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)). On direct
1 Section 1170.95 was amended effective January 1, 2022 and then
renumbered as section 1172.6 without substantive change on June 30, 2022.
(See Stats. 2022, ch. 58, § 10, (Assem. Bill No. 200).) We refer to the subject
statute by its current number throughout this opinion. All further statutory
references are to the Penal Code.
2 We recognize some courts have ruled that a defendant has no right to
Wende/Anders review in an appeal from the denial of a section 1172.6 petition
for resentencing. (See, e.g., People v. Figueras (2021) 61 Cal.App.5th 108,
110–113.) Other courts have concluded that Wende/Anders review is not
required, but that appellate courts have discretion to conduct such a review
in the interests of justice. (People v. Gallo (2020) 57 Cal.App.5th 594, 598–
599.) Because this issue is currently pending before the Supreme Court
(People v. Delgadillo (Nov. 18, 2020, No. B304441), review granted Feb. 17,
2021, S266305), we have opted to conduct a Wende/Anders review.
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appeal, we reversed the judgment on the ground that the trial court
prejudicially erred in excluding defense evidence of possible third party
culpability. (People v. Smann (Nov. 21, 2002, D038219 [nonpub. opn.].)
After remand and a second trial in 2004, a jury again convicted Smann
of conspiracy to commit murder and two counts of first degree murder with
true findings on allegations that he was armed with a firearm in the
commission of the crimes and the special circumstance that he was convicted
in this proceeding of more than one murder. With respect to the conspiracy
to commit murder charge, the jury found the following overt acts: (1) Smann
and his co-conspirator armed themselves with a handgun, (2) they met with
the victims, (3) they told the victims they were going to look for girls, (4)
Smann placed a yellow cord around the neck of one of the victims to choke
and restrain him, (5) Smann restrained the victim while the co-conspirator
shot him, (6) Smann and the co-conspirator then fled the scene in the victim’s
car, and (7) Smann and his co-conspirator took the stereo from the victim’s
car. The court sentenced Smann to two consecutive terms of life without the
possibility of parole for the murder convictions plus one year for the firearm
enhancement. The court stayed punishment for the conspiracy to commit
murder charge. On appeal, we reversed a restitution fine imposed pursuant
to section 1202.45, but we affirmed the judgment in all other respects.
(People v. Smann (Apr. 25, 2006, D045166) [nonpub. opn.].)
In 2019, Smann filed a petition for resentencing pursuant to section
1172.6. The trial court denied the petition stating the prosecution “did not
proceed on either a felony murder” or “natural and probable consequence
doctrine in the instant case. Petitioner confessed to his active role in the
planning and execution of the murders. Furthermore, the jury made express
findings that Petitioner conspired to commit the murders with the intent to
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kill, and took active steps to accomplish his intended goal of murder.” For
these reasons, the court determined Smann failed to make a prima facie
showing of eligibility for resentencing. (Emphasis omitted.) Smann did not
appeal this order.
In November 2021, Smann filed a section 1172.6 petition for
resentencing. The court denied the petition, determining it was
“substantively identical to the petition filed in 2019” and Smann proffered
“no change in the applicable facts or the law that would justify the re-filing of
a previously denied petition.” Smann filed a notice of appeal.
His appointed appellate counsel filed an opening brief raising no issues
and asking us to review the record for error under Wende and Anders. The
opening brief identified five potential issues to assist this court in conducting
its independent review of the record: (1) whether this court should conduct
an independent review of the record pursuant to People v. Wende, supra, 25
Cal.3d 436; (2) whether Smann filed a facially sufficient petition under
section 1172.6, subdivisions (b) and (c), such that the trial court erred in
failing to appoint counsel before considering the record of conviction to
determine whether “ ‘the petitioner makes a prima facie showing that he or
she is entitled to relief’ ”; (3) whether the trial court’s summary denial of the
petition constituted prejudicial error in violation of Smann’s state and federal
due process rights; (4) whether, based upon the instructions given, the jury’s
true finding on the multiple murder special circumstance allegation rendered
Smann ineligible for resentencing as a matter of law; and (5) whether, based
upon the instructions given, the jury’s guilty verdict on the charge of
conspiracy to commit murder rendered Smann ineligible for resentencing as a
matter of law.
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Smann filed his own supplemental brief arguing the order denying his
petition for resentencing should be reversed based on People v. Lewis (2021)
11 Cal.5th 952 because the court did not follow the statutory resentencing
procedures, including appointment of counsel. He argued broadly that
collateral estoppel should not bar a second petition if there has been an
intervening change in the law. However, he did not set forth what change in
the law or facts have occurred since his 2019 resentencing petition that would
now permit resentencing. Finally, Smann cited People v. Strong (2022) 13
Cal.5th 698 which held that a jury’s true finding on felony-murder special-
circumstance allegations prior to the decisions in People v. Banks (2015) 61
Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 does not preclude a
defendant from making a prima facie case for relief under section 1172.6. He
claimed the jury’s special circumstance findings in this case do not preclude
him from making a prima facie case for resentencing because his second
conviction predated the Banks and Clark decisions. He does not
acknowledge, however, that the jury did not find special circumstances
related to felony murder. Instead, the jury found true special circumstance
allegations for multiple murder.
DISCUSSION
We have reviewed the entire record as required by Wende and Anders.
We have also considered the issues identified by counsel in the opening brief
and by Smann in his supplemental brief. We have not discovered any
arguable issue that would result in a reversal or modification of the trial
court’s ruling. Competent counsel has represented Smann in this appeal.
Accordingly, we affirm the trial court’s order.
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DISPOSITION
The order denying Smann’s petition for resentencing under section
1172.6 is affirmed.
McCONNELL, P. J.
WE CONCUR:
AARON, J.
DO, J.
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