People v. Cole CA2/2 ( 2023 )

Filed 8/3/23 P. v. Cole 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B304329
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. NA061968)
FREDDIE COLE, OPINION ON REMAND
Defendant and Appellant.
THE COURT:
In a June 21, 2023, order, the California Supreme Court
directed us (1) to vacate our August 3, 2020, decision in this
matter, and (2) to “reconsider whether to exercise [our] discretion
to conduct an independent review of the record or provide any
other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216,
232-233 & fn. 6” (Delgadillo). The parties filed supplemental
briefing regarding the Supreme Court’s remand order.
We begin by vacating our August 3, 2020, decision in this
matter.
In that prior decision, we held that the duty of an appellate
court to conduct an independent review of the record when a
criminal defendant’s lawyer files a “no merit” brief pursuant to
People v. Wende (1979) 25 Cal.3d 436 (Wende) on direct appeal
does not extend to appeals in post-conviction matters. (People v.
Cole (Aug. 3, 2020) B304329, at pp. 1-2, opn. ordered nonpub.
June 21, 2023.) In Delgadillo, supra, 14 Cal.5th 216, our
Supreme Court agreed with our basic holding but went on to spell
out the procedures that appellate courts are to follow in these
post-conviction appeals where the defendant’s counsel believes
there is “no merit.” (Id. at p. 222.) Specifically, Delgadillo held
that appellate courts that receive a “no merit” brief from defense
counsel should thereafter provide the defendant notice that (1)
“counsel was unable to find any arguable issues,” (2) “the
defendant may file a supplemental brief or letter raising any
argument the defendant wishes the court to consider,” and (3) “if
no such supplemental brief or letter is timely filed, the court may
dismiss the appeal as abandoned.” (Ibid.) Because our prior
decision in this matter was the first decision to apply these new
procedures in the context of an appeal from the denial of a post-
conviction petition for relief under Penal Code section 1172.6,1
1 All further statutory references are to the Penal Code
unless otherwise indicated.
Former section 1170.95 was the pertinent statute when we
issued our prior decision in this matter. Effective June 30, 2022,
section 1170.95 was renumbered section 1172.6, with no change
2
the notice we gave to defendant contained the first two of
Delgadillo’s notice requirements, but not the third. The notice
given to the defendant in Delgadillo was also missing the third
requirement; the Delgadillo court labeled the notice “suboptimal,”
and proceeded to conduct an independent review of the record
(consistent with the Wende procedures). (Delgadillo, at pp. 222,
232-233.) We will do the same. In his supplemental brief,
defendant requests that we give him proper notice (which
includes another opportunity to file a supplemental brief or
letter) and that we thereafter conduct an independent review of
the record.2 We decline this request, as Delgadillo makes clear
that defendant is entitled to one remedy or the other, but not
both remedies. We have elected to exercise our discretion to
conduct an independent review. (Id. at p. 232 [appellate court
has discretion to “conduct[] its own independent review of the
record in any individual section 1172.6 appeal”].)3
Our independent review of the record confirms that
defendant’s appeal has no merit.
Defendant was convicted in 2007 of murder (§ 187, subd.
(a)) and arson of an inhabited structure (§ 451, subd. (b)). The
in text. (Stats. 2022, ch. 58, § 10.) For simplicity, we refer to the
statute by its new numbering.
2 The People assert that we should issue defendant a new
notice and permit him to file a supplemental brief or letter.
3 As a result, we deny defendant’s motion to vacate our
submission of this case, which we entered after receiving the
party’s supplemental briefs. That motion is premised on
defendant’s view that he is entitled to a second opportunity to file
a supplemental brief and independent review; as noted in the
text, we reject this reading of Delgadillo.
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evidence at trial established that defendant repeatedly
threatened to “burn this mother fucker down and everybody
that’s in it,” and thereafter—while acting alone—splashed
gasoline on the porch of an apartment where the murder victim
lived moments before a fire started. Because defendant acted
alone, the jury was not instructed on the theories of aiding and
abetting or conspiracy. Although the jury was instructed on the
theory of felony murder, that instruction applied only to liability
for his act of arson; because defendant acted alone in committing
arson, the jury was not instructed on a theory of felony murder
for liability for acts committed by a co-felon. In April 2019,
defendant filed a petition seeking resentencing under section
1172.6. In his form petition, defendant alleged that he “was not
the actual killer.” On January 15, 2020, and after appointing
defendant counsel, the trial court summarily denied defendant’s
petition after finding him categorically ineligible for relief.
The summary denial of a section 1172.6 petition is
permissible only if the petitioner is not eligible for relief as a
matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 971.)
Because section 1172.6 is aimed at granting post-conviction relief
to those defendants convicted of murder under a theory
invalidated by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (§§
1172.6, subd. (a)(3), 188, subd. (a)(3), 189, subd. (e)), a section
1172.6 petition may be summarily denied if the record shows, as
a matter of law, that the defendant’s murder conviction rests on a
still-valid theory. (People v. Mancilla (2021) 67 Cal.App.5th 854,
866-867 [looking to absence of jury instructions on invalidated
theories].) A person may still be convicted of murder if he or she
is the “actual killer.” (§§ 189, subd. (e)(1), 188, subd. (a)(3).)
Because the record here shows that defendant acted as the
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“actual killer” and because the jury instructions did not permit
the jury to convict defendant on any theory other than his role as
the “actual killer,” the trial court’s ruling that defendant is
ineligible for relief as a matter of law was indisputably correct.
Accordingly, we affirm the trial court’s order denying defendant
relief under section 1172.6.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
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