People v. Walker CA2/2 ( 2023 )

Filed 7/21/23 P. v. Walker CA2/2
(Opinion following transfer from Supreme Court)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B310712
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA222258)
VANESSA WALKER, OPINION ON REMAND
Defendant and Appellant.
THE COURT:
Pursuant to the April 12, 2023, order of the California
Supreme Court, we vacate our November 9, 2021, decision in this
matter. Upon reconsideration in light of People v. Delgadillo
(2022) 14 Cal.5th 216, 232–233 & fn. 6 (Delgadillo), we exercise
our discretion to conduct an independent review of the record.
Based on that independent review, we affirm the trial court’s
order denying the Penal Code section 1172.61 (former § 1170.95)2
petition filed by defendant and appellant Vanessa Walker.
BACKGROUND
In 2003, defendant and her husband were charged with
first degree murder (§ 187, subd. (a)) and conspiracy to commit
first degree murder (§§ 187, subd. (a), 182, subd. (a)). (People v.
Walker (Jan. 14, 2005, B168784) [nonpub. opn.], at p. 2
(Walker I).) Following a jury trial, defendant was convicted of the
lesser included offense of second degree murder. (§ 187, subd. (a);
Walker I, supra, B168784, at p. 2.) She also admitted to a prior
conviction for voluntary manslaughter. (§ 192.) The trial court
sentenced her to 35 years to life in state prison. (Walker I, supra,
B168784, at p. 2.) On direct appeal, we affirmed the judgment as
to defendant. (Id. at pp. 3, 32.)
On March 6, 2019, defendant filed a petition for
resentencing under section 1172.6 and was appointed counsel.
The People filed an opposition to the petition, arguing that
defendant was ineligible for resentencing relief because she had
not been convicted under a theory of vicarious liability, such as
felony murder or the natural and probable consequences doctrine.
The People attached multiple exhibits, including the record of
defendant’s 2003 trial and our opinion in her direct appeal.
Defendant’s counsel filed a reply, contending that because
defendant had satisfied the requisite elements establishing a
prima facie showing for relief under section 1172.6, the trial court
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
For simplicity, we refer to the section by its new numbering.
2
should issue an order to show cause for an evidentiary hearing.
Defendant did not attach any exhibits.
On January 11, 2021, the trial court summarily denied
defendant’s petition, finding her ineligible for relief because
defendant was convicted as the actual killer or as an aider and
abettor, and, in any event, the jury had not been instructed on
either felony murder or the natural and probable consequences
doctrine.
Defendant timely appealed from the trial court’s order.
Counsel was appointed to represent defendant in connection with
this appeal. After reviewing the record, appointed counsel filed a
brief raising no issues and asking this court to independently
review the entire record on appeal for arguable issues, pursuant
to the procedures set forth in People v. Wende (1979) 25 Cal.3d
436 (Wende). Counsel informed defendant that she could file a
supplemental brief and sent her the transcripts of the record on
appeal and a copy of the opening brief.
On August 17, 2021, we sent a notice to defendant stating
the following: “Counsel appointed to represent appellant on
appeal has filed an appellant’s opening brief that raises no issues.
([Wende, supra,] 25 Cal.3d [at p.] 442.) [¶] Appointed counsel is
directed to send the record of this appeal and a copy of appellant’s
opening brief to appellant immediately. Within 30 days of the
date of this notice, appellant may submit a supplemental brief or
letter stating any grounds for an appeal, or contentions, or
arguments which appellant wishes this court to consider.”
Defendant did not file a supplemental brief, and, following
the procedures established in People v. Cole (2020)
52 Cal.App.5th 1023, 1039–1040, review granted October 14,
2020, S264278, we dismissed her appeal as abandoned. (People v.
3
Walker (Nov. 9, 2021, B310712) [nonpub. opn.], at p. 3
(Walker II).)
Defendant filed a petition for review with the California
Supreme Court, which was granted on January 19, 2022. In an
order filed on April 12, 2023, the California Supreme Court
transferred the case back to this court “with directions to vacate
[our] decision and reconsider whether to exercise [our] discretion
to conduct an independent review of the record or provide any
other relief in light of [Delgadillo, supra,] 14 Cal.5th [at pp.] 232–
233 & fn. 6.”
On April 26, 2023, defendant’s appointed counsel filed a
brief asking us to conduct an independent review of the record.
On May 10, 2023, the People filed a letter urging us to dismiss
this appeal without further review. On May 18, 2023, defendant
filed a supplemental brief requesting, among other things, that
we independently review the record.
DISCUSSION
I. Independent Review
Delgadillo prescribed the following procedures when
appointed counsel finds no arguable issues in an appeal from the
denial of a section 1172.6 petition:
“(1) [C]ounsel should file a brief informing the court of that
determination, including a concise recitation of the facts bearing
on the denial of the petition; and (2) the court should send, with a
copy of counsel’s brief, notice to the defendant, informing the
defendant of the right to file a supplemental letter or brief and
that if no letter or brief is filed within 30 days, the court may
dismiss the matter. [Citations.]
“If the defendant subsequently files a supplemental brief or
letter, the Court of Appeal is required to evaluate the specific
4
arguments presented in that brief and to issue a written opinion.
The filing of a supplemental brief or letter does not compel an
independent review of the entire record to identify unraised
issues. [Citations.] If the defendant does not file a supplemental
brief or letter, the Court of Appeal may dismiss the appeal as
abandoned. [Citation.] If the appeal is dismissed as abandoned,
the Court of Appeal does not need to write an opinion but should
notify the defendant when it dismisses the matter. [Citation.]
While it is wholly within the court’s discretion, the Court of
Appeal is not barred from conducting its own independent review
of the record in any individual section 1172.6 appeal.
[Citations.]” (Delgadillo, supra, 14 Cal.5th at pp. 231–232.)
Here, we provided notice to defendant before Delgadillo
was issued. Although our notice informed defendant of her right
to file a supplemental brief, it did not inform her that her appeal
could be dismissed if a supplemental brief was not filed.
Additionally, the notice “affirmatively cited Wende after
[defendant]’s counsel had filed a brief pursuant to Wende.”
(Delgadillo, supra, 14 Cal.5th at p. 233.) Thus, “the notice in this
case was suboptimal.” (Ibid.)
Under these circumstances and “in the interest of judicial
economy” (Delgadillo, supra, 14 Cal.5th at p. 222), we have
exercised our discretion to undertake an independent review of
the entire record on appeal. Based on this independent review,
we determine that defendant is not entitled to any relief under
section 1172.6. We are satisfied that defendant’s appellate
counsel has fully complied with her responsibilities and that no
arguable issues exist.
5
II. Defendant’s Arguments
In the interest of thoroughness, we will also address the
arguments defendant made in her recent supplemental brief.
Defendant principally argues that she is eligible for
resentencing under section 1172.6 because she was “not the killer
in this crime and did not know this crime was going to take
place.” In support of this claim, defendant submits a letter from
her former husband, which purportedly demonstrates that he
was the sole and actual killer.3 Defendant thus urges us to order
the trial court to issue an order to show cause for a resentencing
hearing.
Defendant’s argument fails for two reasons. First, we
cannot consider evidence not presented to the trial court.
(Spaccia v. Superior Court (2012) 209 Cal.App.4th 93, 108 [“[W]e
do not consider evidence which was not before the trial court
when it ruled on the motion”]; People v. Zamora (1980) 28 Cal.3d
88, 96 [“[W]e should not take judicial notice of matters which
should have been, but were not, presented to the trial court”].)
The letter submitted on appeal is dated June 2010. Yet
defendant gives no reason why the letter was neither proffered to
nor referenced in papers filed with the trial court before it denied
defendant’s section 1172.6 petition in January 2021. Under these
circumstances, we cannot review the letter.
Second, even if we agreed that defendant was not the
actual killer, we still would not reverse the trial court’s order.
3 Defendant also includes several evaluations from her work
supervisors commending her ability and capacity for
rehabilitation, presumably to encourage a lighter sentence upon
resentencing. These evaluations are not relevant to this appeal,
which contests defendant’s eligibility for resentencing.
6
Defendant suggests that she is automatically entitled to
resentencing relief if she can establish that she is not the actual
killer. This argument misunderstands section 1172.6, which
provides relief for “person[s] convicted of . . . murder under . . . [a]
theory under which malice is imputed to a person based solely on
that person’s participation in a crime.” (§ 1172.6, subd. (a).)
The trial court determined that defendant was convicted
either as the actual killer or as an aider and abettor.4 Because
the latter theory of conviction still requires the prosecution to
prove the defendant’s malicious intent, a defendant convicted
under this theory does not qualify for resentencing relief under
section 1172.6. (See People v. Gentile (2020) 10 Cal.5th 830, 850
[“[N]otwithstanding Senate Bill 1437’s elimination of natural and
probable consequences liability for second degree murder, an
aider and abettor who does not expressly intend to aid a killing
can still be convicted of second degree murder if the person knows
that his or her conduct endangers the life of another and acts
with conscious disregard for life”] [abrogated on other grounds by
Senate Bill No. 775].) Accordingly, even if defendant could show
that she was not the actual killer, the trial court correctly
determined that defendant remains ineligible for relief under
section 1172.6.
4 As discussed above, our independent review found no error
in this determination.
7
DISPOSITION
The order denying defendant’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
8