People v. Smith CA2/3 ( 2024 )

Filed 10/30/24 P. v. Smith CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B330512
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA142223)
v.
JOSHUA TYRECE SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Connie R. Quinones, Judge. Affirmed.
Kevin Smith, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Joshua Tyrece Smith appeals from the modified judgment
entered after this court remanded the matter for further
proceedings following a prior appeal. (People v. Smith (Sept. 22,
2022, B308972 [nonpub. opn.].) Smith’s counsel has asked us to
conduct an independent review of the record under People v.
Wende (1979) 25 Cal.3d 436 (Wende). We affirm.
In 2018, a jury convicted Smith of first degree murder (Pen.
Code, § 187, subd. (a); count 1),1 and found true principal firearm
use (§ 12022.53, subds. (d), (e)(1)) and gang allegations (§ 186.22,
subd. (b)(1)(C)). The trial court imposed a 25-years-to-life
sentence for the firearm enhancement, consecutive to a 25-years-
to-life sentence on the murder conviction.
In Smith’s first appeal, this court rejected the contentions
he raised, but concluded he was entitled to benefit from Assembly
Bill No. 333 (2021–2022 Reg. Sess.), which amended
section 186.22 and became effective while the appeal was
pending. Due to the changes in the law, we reversed the true
findings on the gang enhancement and gang-related gun use
enhancement. We remanded the matter to the trial court to
allow the prosecution the option of retrying the enhancements
and establishing all elements required by Assembly Bill No. 333.
However, we rejected Smith’s argument that section 1109
entitled him to a new trial on the underlying substantive charge.
On remand, the People declined to retry the gang
allegations. The trial court therefore struck the section 12022.53,
subdivisions (d) and (e) and section 186.22, subdivision (b)(1)(C)
allegations, and the accompanying 25-years-to-life sentence,
leaving in place only the 25-years-to-life sentence for first degree
1 All further undesignated statutory references are to the
Penal Code.
2
murder. The court ordered a new abstract of judgment to be sent
to the California Department of Corrections and Rehabilitation.
Smith timely appealed.2 Court-appointed appellate counsel
filed an opening brief that raised no issues and asked this court
to independently review the record pursuant to Wende, supra, 25
Cal.3d 436.3 We directed appellant’s counsel to send Smith the
record and a copy of the opening brief, and we advised that
within 30 days of the date of the notice, Smith could submit a
supplemental brief or letter stating any grounds for an appeal,
contentions, or arguments he wished this court to consider.
Appellate counsel also submitted a declaration stating that he
had informed Smith of his right to file a supplemental brief and
would be sending the appellate record to him. At this court’s
request, appellate counsel submitted a supplemental declaration
indicating he forwarded the appellate record to Smith on or
around May 1, 2024. Smith did not submit a supplemental brief.
We have independently examined the record submitted on
appeal and are satisfied no arguable issues exist and Smith’s
2 We note the notice of appeal, apparently filed in pro per,
asserted Smith was entitled to a new trial because the gang
evidence was prejudicial, and the jury would not have found him
guilty had the gang evidence been excluded. However, this court
addressed and rejected the same argument in the first appeal.
3 Appellate counsel noted that Smith has filed multiple
petitions for resentencing pursuant to section 1172.6. We
granted counsel’s motions to augment the record and his request
for judicial notice of documents related to those proceedings.
However, the section 1172.6 proceedings were not the subject of
Smith’s notice of appeal, and many appear to have occurred well
after the appeal was filed in this matter. The section 1172.6
proceedings are not before us at this time.
3
attorney has complied with the responsibilities of counsel.
(People v. Kelly (2006) 40 Cal.4th 106, 125–126; Wende, supra, 25
Cal.3d at pp. 441–442.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
EGERTON, J.
4