People v. Hutton CA3

Filed 2/3/22 P. v. Hutton CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C092488
Plaintiff and Respondent, (Super. Ct. No. 93F02093)
v.
DALE LEROY HUTTON,
Defendant and Appellant.
This appeal arises from the trial court’s denial of defendant Dale Leroy Hutton’s
Penal Code section 1170.95 petition for resentencing.1 Appointed counsel for defendant
filed an opening brief setting forth the facts of the case and asking this court to review the
record to determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Defendant subsequently filed a supplemental brief also
1 Further undesignated statutory references are to the Penal Code.
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seeking our review of his case but not arguing any specific issues with the judgment.
After reviewing the entire record, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and the victim were using drugs together when defendant stabbed the
victim to death and took his money and drugs. On April 18, 1995, a jury found defendant
guilty of second degree murder (§ 187, subd. (a)) and first degree robbery (§ 211). The
jury also found true the allegation that defendant personally used a knife (§ 12022, subd.
(b)). Defendant was acquitted of first degree murder with a robbery-murder special
circumstance. He was sentenced to 15 years to life in prison for the murder plus a
consecutive six years for the robbery and one year for the enhancement.
In March 2019, defendant filed his petition for resentencing pursuant to recently
enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.). In February 2020, after receiving
briefing from the parties, the trial court denied the petition. The court reasoned that
defendant was the actual killer and the jury was not instructed on any theory of
accomplice liability or second-degree felony murder. The court further observed that
defendant was convicted of second degree murder and the jury also found the allegation
that he personally used a deadly weapon true. The court concluded he was thus convicted
based solely on a theory of express or implied malice aforethought and was ineligible for
relief under section 1170.95.
Defendant timely appealed.
DISCUSSION
Counsel filed an opening brief that sets forth the facts and procedural history of
the case and requests this court to review the record and determine whether there are any
arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Whether the protections
afforded by Wende and the United States Supreme Court decision in Anders v. California
(1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal from an order denying a
petition pursuant to section 1170.95 remains an open question. Our Supreme Court has
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not spoken. However, we are persuaded by the opinion of the Second District Court of
Appeal, in People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, that the Wende/Anders procedures do not apply. (But see People v. Flores
(2020) 54 Cal.App.5th 266, 273-274 [agreeing with People v. Cole but conducting an
independent review of the record in the interests of justice].)
Defendant timely filed a supplemental brief. He argues that because the jury
acquitted him of first degree murder with robbery-murder special circumstance, the
changes to section 188 make it impossible for his conviction of second degree murder to
stand. He cites no authority and nothing in the record on appeal to support his position.
Instead, he contends that there are materials outside the record on appeal, which he has
been unable to obtain, that support his view.
We need not address the split in authority as to under what circumstances the
protections afforded by Wende apply to this appeal. Given that defendant has filed a
supplemental brief, we exercise our discretion to review the case for error. (See People v.
Figueras (2021) 61 Cal.App.5th 108, 113 [suggesting that even assuming no right to
Wende protections, dismissal of appeal as abandoned not appropriate where defendant
has filed a supplemental brief], review granted May 12, 2021, S267870; People v. Flores,
supra, 54 Cal.App.5th at p. 274 [although Wende review is not legally compelled on
appeal from an order denying a section 1170.95 petition, an appellate court “can and
should” independently review the record on appeal].)
Having examined the record for error, we find no arguable error that would result
in a disposition more favorable to defendant. The arguments raised in defendant’s
supplemental brief lack merit or do not raise issues properly before us. The record of
conviction here establishes defendant was the actual killer as he personally used a knife
to stab the victim to death. As the actual killer, defendant’s second degree murder
conviction is still valid after Senate Bill No. 1437, and he is therefore ineligible for relief
under section 1170.95. The trial court properly denied defendant’s petition.
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DISPOSITION
The judgment (order) is affirmed.
\s\
BLEASE, Acting P. J.
We concur:
\s\
DUARTE, J.
\s\
KRAUSE, J.
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