People v. Aremu CA2/5 ( 2023 )

Filed 7/26/23 P. v. Aremu CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B322491
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A390607)
v.
TONY OLIVER AREMU,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Norman J. Shapiro, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 1984, a jury convicted defendant Tony Aremu of second
degree murder (Pen. Code, § 187, subd. (a)1) and found true the
allegation that he personally used a deadly and dangerous
weapon in the commission of the murder (§ 12022, subd. (b)). The
trial court sentenced defendant to 16 years to life in state prison.
In 2019, defendant filed a petition for resentencing
pursuant to former section 1170.95.2 The trial court denied the
petition on the ground that defendant was the actual killer.
Defendant appealed. We affirmed the court’s order, holding that
defendant was ineligible for resentencing as a matter of law
because the jury instructions in defendant’s case did not include
instructions on aiding and abetting, the felony murder rule, or
the natural and probable consequences doctrine, and the verdict
form contained the jury’s finding that defendant personally used
a deadly and dangerous weapon, a knife. (People v. Aremu
(Oct. 26, 2020, B300328) [nonpub. opn.].)
On January 13, 2021, our Supreme Court granted
defendant’s petition for review and deferred further action
pending its consideration and disposition of People v. Lewis
(2020) 43 Cal.App.5th 1128 or further order of the court.
On September 29, 2021, after issuing its opinion in People
v. Lewis (2021) 11 Cal.5th 952, the Supreme Court dismissed
review in defendant’s case.
1 All further statutory references are to the Penal Code.
2 Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6 with no change in text. (Stats.
2022, ch. 58, § 10.) Further references will be to the statute’s
current section number only.
2
On April 18, 2022, following our remittitur to the trial
court, defendant filed a second section 1172.6 petition for
resentencing. The court denied the petition on the ground that
defendant was the actual killer and therefore ineligible for relief.
Defendant appealed and we appointed counsel to represent
him. Counsel filed an opening brief in which she does not
identify any arguable issues and requests that we evaluate any
issues defendant might raise in a supplemental brief and
independently review those portions of the record necessary to
resolve any such arguments pursuant to People v Delgadillo
(2022) 14 Cal.5th 216 (Delgadillo). Further, counsel notes that
under Delgadillo we have discretion to conduct an “independent
review of the record in the interest of justice.” (Id. at p. 230.)
On January 25, 2023, we notified defendant that appointed
appellate counsel had filed a brief that raises no issues and
defendant had 30 days within which to submit a supplemental
brief or letter stating any grounds for an appeal, or contentions,
or arguments that he wished this court to consider. Defendant
timely filed a supplemental brief in which he argues that the
evidence at his trial combined with evidence not presented or
withheld by the prosecution prove that he killed his victim,
Tamzetta Harris, in a heat of passion and thus was guilty of
manslaughter and not second degree murder. Defendant argues
the evidence shows he had been romantically involved with
Harris who, allegedly, was having a secret, adulterous
relationship with Theodore Monroe. On the night defendant
killed Harris, he saw her exiting Monroe’s car. Defendant
became enraged and killed Harris in a heat of passion.
Defendant also argues, without explanation, that the prosecution
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failed to prove malice beyond a reasonable doubt thus violating
his right to a fair trial.
Although we have discretion to review independently the
entire record, we limit our review to the issues raised in
defendant’s supplemental brief. (Delgadillo, supra, 14 Cal.5th at
232 [where the defendant’s attorney finds no arguable issues in
an appeal from the denial of a section 1172.6 petition and the
defendant files a supplemental brief, “the Court of Appeal is
required to evaluate the specific arguments presented in that
brief and to issue a written opinion,” but it is “wholly within the
court’s discretion” whether to conduct an independent review of
the entire record].)
The arguments defendant raises in his supplemental brief
do not address his eligibility for resentencing under section
1172.6. Defendant’s evidentiary claims do not bear on whether
he could “presently be convicted of murder or attempted murder
because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a)(3).) Accordingly, we reject
those arguments in this appeal from the trial court’s
postjudgment order denying defendant’s section 1172.6 petition.
(See, e.g., People v. DeHuff (2021) 63 Cal.App.5th 428, 438, fn.
omitted [section 1172.6 “does not permit a petitioner to establish
eligibility on the basis of alleged trial error”].)
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DISPOSITION
The trial court’s order denying defendant’s section 1172.6
petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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