People v. Smith CA3 ( 2023 )

Filed 6/20/23 P. v. Smith CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091746
Plaintiff and Respondent, (Super. Ct. No. CR68241)
v. OPINION ON TRANSFER
DARREL M. SMITH,
Defendant and Appellant.
Defendant Darrel M. Smith1 appeals from the denial of his postconviction petition
for relief under Penal Code2 section 1172.6.3 Counsel for defendant filed a brief seeking
1 Defendant’s name is listed multiple ways throughout the record. While the
original abstract of judgment lists defendant’s name as “Darrel Maurice Smith,” this
court’s prior orders, the petition for review by our Supreme Court, and our high court’s
order list defendant’s name as “Darrel M. Smith”; we use the latter name in this opinion
for consistency.
2 Further undesignated statutory references are to the Penal Code.
3 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to
section 1172.6 with no substantive change in the text. (Stats. 2022, ch. 58, § 10.)
1
our independent review under People v. Wende (1979) 25 Cal.3d 436 to determine
whether there are any arguable issues on appeal. Pursuant to People v. Delgadillo (2022)
14 Cal.5th 216 (Delgadillo), we will dismiss the appeal as abandoned.
FACTUAL AND PROCEDURAL BACKGROUND
In January 1984, defendant went to the residence of T.C., with whom he
previously had been romantically involved. He shot both her and another woman, who
was present, in the legs. He then shot T.C.’s fiancé, D.H., in the head, killing him.
By stipulation of the parties, a court trial was held and defendant was found guilty
by the trial court of second degree murder based on evidence submitted at the preliminary
examination. The trial court also found defendant personally used a firearm. Defendant
was sentenced to an indeterminate term of 15 years to life for murder, plus two years
consecutive for the firearm enhancement.
In January 2019, defendant filed a form petition for resentencing under section
1172.6, checking boxes declaring that a complaint, information, or indictment was filed
against him that allowed the prosecution to proceed under a felony-murder theory or
under the natural and probable consequences doctrine; he was convicted of first or second
degree murder under the felony-murder rule or natural and probable consequences
doctrine; and he could not now be convicted of first or second degree murder because of
the changes to sections 188 and 189. Defendant also checked a box declaring that he was
convicted of second degree murder under the natural and probable consequences doctrine
or second degree felony murder and could not now be convicted under the changes to
section 188. The trial court appointed a public defender to represent defendant.
The prosecution filed a response arguing that the petition should be dismissed
because (1) Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4,
Defendant filed his petition under former section 1170.95. We will refer to the current
section 1172.6 throughout this opinion.
2
effective Jan. 1, 2019), which enacted section 1172.6, is unconstitutional and (2)
defendant was the actual killer and therefore not eligible for relief.
Defendant filed a reply arguing, inter alia, that (1) an actual killer convicted of
second degree murder is not ineligible for relief; (2) at the prima facie stage, defendant’s
factual allegations should be taken as true; and (3) Senate Bill No. 1437 is constitutional.
On February 5, 2020, the trial court denied the petition. The trial court noted that
defendant entered a “slow plea[,] allowing the court to determine his guilt based on the
preliminary [examination] transcripts.” The trial court concluded that defendant could
have been found guilty “solely on an implied malice theory.” The trial court found no
basis for guilt under the natural and probable consequences doctrine because defendant
acted alone and shot the gun, or for felony murder because the underlying felony was
assault, “which under the merger doctrine . . . could not have been [a] basis for second
degree felony-murder.”
Defendant filed a timely notice of appeal.
We appointed counsel to represent defendant on appeal. Counsel filed a brief
under Wende requesting that we independently review the entire record on appeal and
stated defendant had been advised by counsel of the right to file a supplemental brief to
raise any issues defendant believed deserved review.
We dismissed the appeal as abandoned. The California Supreme Court granted
defendant’s petition for review and deferred the matter pending our high court’s decision
in Delgadillo. When our Supreme Court issued its opinion in Delgadillo, supra,
14 Cal.5th 216, the case was transferred back to this court with directions to vacate our
order dismissing the appeal and reconsider the matter under Delgadillo. We vacated our
order dismissing the appeal.
We informed defendant by letter that appellate counsel had filed a no-issue brief
requesting independent review under Wende. However, because this case arose from an
order denying postconviction relief, defendant was not constitutionally entitled to counsel
3
or an independent review of the record. We notified defendant that, under Delgadillo, he
had 30 days to file a supplemental brief or letter raising any issue he wished us to
consider. If we did not receive a supplemental letter or brief, the appeal may be
dismissed as abandoned. Defendant did not file a supplemental brief.
We consider defendant’s appeal abandoned and order the appeal dismissed.
(Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The appeal is dismissed.
/s/
ROBIE, Acting P. J.
We concur:
/s/
KRAUSE, J.
/s/
EARL, J.
4