People v. Dean CA2/1 ( 2023 )

Filed 10/31/23 P. v. Dean CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 ONE
THE PEOPLE, B328523
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA050568)
v.
GREGORY DEAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Gregory A. Dohi, Judge. Affirmed.
Gloria C. Cohen, under appointment by the Court of
Appeal; Gregory Dean, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________________________
Gregory Dean appeals from an order denying his petition
for resentencing under Penal Code section 1172.6.1 His
appointed appellate counsel filed a brief raising no issues and
asking this court to review the record independently to determine
whether there are any arguable issues pursuant to People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Dean filed a
supplemental brief raising issues outside the scope of an 1172.6
resentencing proceeding. Accordingly, we affirm the order.
BACKGROUND
In 2008, a jury convicted Dean of first degree murder with
use of a firearm and two counts of assault with a semiautomatic
firearm. (§§ 187, subd. (a); 12022.53, subd. (d); 245, subd. (b);
12022.5, subd. (a).) He was sentenced to sixty-three years and
four months to life.
Dean appealed from the judgment of conviction, contending
that a request he made at trial to represent himself obligated the
court to hold a hearing under People v. Marsden (1970) 2 Cal.3d
118, which the court erroneously failed to do. In an unpublished
opinion, we rejected this contention and affirmed the judgment.
(People v. Dean (Sept. 28, 2009, B212558).)
II. Petition for Resentencing
On September 1, 2022, Dean, representing himself, filed a
petition for resentencing under section 1172.6, which permits a
person convicted of attempted murder under the natural and
probable consequences doctrine to petition the court to have the
conviction vacated and to be resentenced if the person could not
presently be convicted of attempted murder due to changes to
1 Undesignated statutory references will be to the Penal
Code.
2
section 188 or 189 made effective January 1, 2019. (§ 1172.6,
subd. (a)(3).)
The trial court appointed counsel for Dean but ultimately
denied the petition on the ground that Dean had been the actual
shooter in the murder, and was not convicted under any theory of
accomplice liability.
III. Present Appeal
Dean filed a timely notice of appeal from the order denying
his petition for resentencing, and we appointed counsel for him.
As noted, counsel filed a brief raising no issues and asking us to
review the record independently to determine whether any
arguable issues exist pursuant to Delgadillo. Counsel served a
copy of the brief on Dean and informed him of his right to file a
supplemental brief.
We sent a letter to Dean, informing him that his counsel
had filed a Delgadillo brief raising no issues and that he could
submit a supplemental brief or letter stating any grounds for the
appeal, or contentions or arguments he wanted this court to
consider. We also informed Dean that if no supplemental brief or
letter was timely filed we may dismiss the appeal as abandoned.
Dean filed a supplemental brief in which he mentions
nothing about resentencing but requests leave to file a petition
for writ of habeas corpus on the grounds of factual innocence,
ineffective assistance of trial and appellate counsel, and judicial
bias.
DISCUSSION
As relevant here, section 1172.6 allows a defendant
convicted of murder to seek resentencing based on changes to the
Penal Code effected under Senate Bill No. 1437 (2017-2018 Reg.
Sess.; Sen. Bill No. 1437) (Stats. 2018, ch. 1015, § 4). (People v.
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Patton (2023) 89 Cal.App.5th 649, 655.) That bill “limited
accomplice liability under the felony-murder rule and eliminated
the natural and probable consequences doctrine as it relates to
murder.” (Ibid.) The threshold question in a section 1172.6
proceeding, therefore, is whether the defendant was convicted
under a theory of murder now invalid under Senate Bill No. 1437.
The trial court found that Dean was not convicted under an
invalid theory, and therefore was ineligible for resentencing.
Dean does not contest that finding.
In Delgadillo, our Supreme Court held that when
appointed counsel in a criminal matter “finds no arguable issues
to be pursued on appeal: (1) counsel 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.” (Delgadillo,
supra, 14 Cal.5th at pp. 231-232.)
Because this is an appeal from a denial of postconviction
relief under section 1172.6, we are not required to conduct an
independent review of the record as we would be in a direct
appeal from a criminal conviction. (Delgadillo, supra, 14 Cal.5th
at pp. 221-222.) When a defendant files a supplemental brief,
however, we are “required to evaluate the specific arguments
presented in that brief and to issue a written opinion.” (Id. at p.
232.)
Here, we decline counsel’s request that we independently
review the record, as nothing before us suggests such an exercise
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is necessary. However, Dean has filed a supplemental brief at
our invitation.
In that brief, Dean raises no issue regarding his petition for
resentencing but seeks habeas relief on the grounds of factual
innocence, ineffective assistance of trial and appellate counsel,
and judicial bias. Those issues are unrelated to his petition for
resentencing, however, and are therefore beyond the scope of this
appeal. A section 1172.6 proceeding is not an opportunity to
challenge all aspects of a conviction, only the aspects implicated
by Senate Bill No. 1437. Having raised no argument pertaining
to Penal Code amendments under Senate Bill No. 1437, Dean’s
challenge necessarily fails.
DISPOSITION
The order denying Dean’s petition for resentencing is
affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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