People v. Demorais CA5

Filed 2/15/22 P. v. Demorais CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080734
Plaintiff and Respondent,
(Stanislaus Super. Ct. No. 127800)
v.
WEDSON ROSA DEMORAIS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo
Cordova, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.
INTRODUCTION
In 1997, appellant and defendant Wedson Rosa Demorais (defendant) fatally
stabbed his wife’s 79-year-old grandparents, Amelia and Gerrald Hunt. He also stabbed
and seriously injured his wife’s mother, Lois Miranda. After a jury trial, defendant was
convicted of counts 1 and 2, first degree murder with a multiple-murder special
circumstance, and count 3, attempted premeditated murder; several enhancements were
found true. This court affirmed defendant’s convictions in 2002.
In 2019, defendant filed a petition in the Superior Court of Stanislaus County for
resentencing pursuant to Penal Code1 section 1170.95 and alleged his murder convictions
were based on the felony-murder rule or the natural and probable consequences doctrine,
and that he was not the actual killer. The court denied the petition. On appeal, his
appellate counsel has filed a brief that summarizes the facts with citations to the record,
raises no issues, and asks this court to independently review the record. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.
FACTS2
“Defendant and Jean Cardoza married in 1990. They had two sons, Nayo in 1993
and Tavio in 1995. In 1992, defendant and Cardoza lived for one year with Amelia and
Gerrald Hunt at their home in Newman. Defendant and Cardoza later moved to Brazil.
When she was pregnant with Tavio, Cardoza decided to return on her own to the United
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2 Defendant was convicted after a jury trial. The People filed this court’s opinion
that affirmed his convictions as an exhibit in support of its opposition to defendant’s
section 1170.95 petition for relief and relied upon the opinion for the factual statement
filed with the superior court. The superior court relied on that factual statement to deny
relief. On appeal, defendant has similarly relied on this court’s opinion for the factual
statement in his opening brief.
Given this background, we take judicial notice of the appellate record and this
court’s nonpublished opinion in People v. Demorais (Aug. 7, 2002, F036692) for the
factual and procedural background for defendant’s convictions. (Evid. Code, § 450,
§ 452, subd. (d), § 459; In re W.R. (2018) 22 Cal.App.5th 284, 286–287, fn. 2.)
2.
States and move back in with her grandparents. Defendant soon joined her. Defendant
lived with the Hunts for about one and one-half years prior to the murders.
“Relations between defendant and the Hunts were more strained the second time
they lived together than the first. Cardoza testified that her grandparents sometimes
treated defendant poorly, but that it was ‘a mutual thing.’ The Hunts were never
physically abusive, but they would get into arguments with defendant. In January 1997,
defendant had moved out and was working at a pizza parlor in San Francisco where he
shared a small apartment with a roommate. Cardoza remained at her grandparents’ house
with the children.
“There was also tension between defendant and his mother-in-law, Lois Miranda.
Miranda testified she did not attend Nayo’s fourth birthday party on January 12, 1997,
because defendant was going to be there and she did not want to see him. Miranda
believed defendant was manipulating her family, and her parents were going broke
because of him. Two or three weeks before the murders, Miranda told Cardoza she
suspected defendant was ‘ “up to something” ’ and thought he might try to kidnap the
children and take them to Brazil.
“Six or seven months before the murders, defendant and Cardoza went to Fremont
to visit her father, Don Cardoza (Don). During this visit, defendant told Don he was
unhappy living with the Hunts and that sometimes when he was in the kitchen with them,
he felt like picking up a knife off the counter and attacking them. Don told defendant that
was the wrong way to think about it and the worst thing he could do. To Don’s surprise,
defendant kept pursuing the topic and the conversation lasted 10 or 15 minutes. At the
time, Don thought defendant was just ‘blowing off steam’ and did not think anything like
that would happen.
“Lizaro Menendes, defendant’s San Francisco roommate, testified that defendant
was always saying the Hunts did not treat him right. Defendant told Menendes they did
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not respect him and said he was no good. Defendant also said that Mr. Hunt called him a
‘son-of-a-bitch.’
“Around 3:00 p.m., on January 13, 1997, Cardoza returned from the school where
she worked as a substitute teacher. Defendant met her in the doorway. He said he did
not feel good and wanted to return to San Francisco. Defendant told Cardoza that he and
Mrs. Hunt had argued about the bill for the Texaco credit card, which the Hunts allowed
defendant to use to purchase gasoline for his truck. Cardoza decided to cancel the
English class she was scheduled to teach that evening and drive defendant back to San
Francisco because he seemed very upset.
“After 3:30 p.m., Cardoza went into the kitchen to say goodbye to her family.
Defendant went in to say goodbye to Nayo and Tavio. Miranda was seated at the kitchen
table. Nayo was sitting on her lap and they were rolling Play Doh® together. While
saying goodbye, defendant bent over Nayo and said, ‘ “I’ll be back for you. You won’t
have to live here.” ’ He then said something in Portuguese. No angry words were
exchanged between defendant and the Hunts, who were also in the kitchen. However,
according to Cardoza, there was ‘tension in the air.’ Mrs. Hunt told Cardoza to ‘give the
baby to Papa,’ referring to Mr. Hunt. Cardoza knew this comment would upset
defendant, so she handed Tavio to Miranda instead. Defendant and Cardoza then left the
house together.
“After they had driven half a block, defendant told Cardoza he wanted to go back
to the house. Defendant told Cardoza that her grandparents were not going to get in the
way of him saying goodbye to his children. Cardoza did not think this made sense
because defendant had already said goodbye to them. However, she made a u-turn and
pulled into the Hunts’ driveway. Cardoza stayed in the car because she was afraid
defendant was going to say something obnoxious to her grandparents, or vice versa, and
she did not want to get into a heated argument over bills.
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“Miranda saw the door open and defendant walk into the kitchen. She thought he
had forgotten something or was going to get a glass of water. Defendant walked slowly
to the sink where Mrs. Hunt was standing. Mr. Hunt was standing nearby, holding Tavio.
Miranda was still at the table with Nayo on her lap. Defendant then turned and walked
over to them. Miranda opened her arms because it looked like defendant was bending
down to kiss Nayo. Miranda then saw ‘this flash of a blade,’ and felt defendant stab her
in the left side of the chest. Nayo either jumped or Miranda threw him from her lap.
Defendant stabbed Miranda again in the right side of the chest. He then stabbed her in
the leg and twisted the knife. When he pulled it out, Miranda saw the tip of the blade had
broken off. Miranda heard her parents exclaim, ‘ “Oh, my god” ’ and ‘ “Oh no.” ’
“Next, defendant stabbed Mrs. Hunt in the chest. He then turned and stabbed
Mr. Hunt in the chest. Mr. Hunt was still holding Tavio at this point. Defendant
continued to stab ‘back and forth’ between Mr. Hunt and Mrs. Hunt. After trying to
knock the knife out of defendant’s hands with an aluminum child's chair, Miranda
grabbed the telephone from the wall and dialed 911. Miranda set the telephone on the
floor and looked around but could no longer see Nayo or Tavio. Miranda left the house
to get help. She saw Cardoza sitting in the car and screamed, ‘ “He’s killing them. He’s
killing them. Call 911.” ’
“Cardoza got out of the car and went toward the house. When she reached the
entryway, she saw that the telephone was off the hook and could tell something awful
was happening. She looked into the kitchen and saw Mr. Hunt by the dish rack,
grabbing something. Tavio came to Cardoza from the living room and she picked him
up. Cardoza backed out of the house, thinking Nayo might be outside. She then went
back inside and called for him. Cardoza went to the doorway of the kitchen and saw
defendant sitting on top of Mr. Hunt and stabbing him repeatedly. Defendant's back was
turned to her and he did not appear to know she was there. Cardoza backed out of the
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kitchen and called again for Nayo. Nayo finally came to her out of the left hallway.
Cardoza grabbed him, put the children in the car, and drove to the police station.
“Meanwhile, Miranda had walked across the street to the house of Gayle Hunewill
(Gayle). Gayle was vacuuming when she heard the front door bell ring and her son,
Kevin Hunewill (Kevin), was in his bedroom doing homework. Gayle answered the door
and found Miranda on the front porch. Miranda was holding her hand on her leg, which
was bleeding. Miranda told Gayle her son-in-law did it and to call 911. Kevin came out
of his bedroom. As they were standing on the porch, defendant came out of the Hunts’
house and yelled to Miranda to come back.
“Gayle and Kevin brought Miranda into the house. Kevin locked the front door
and put the deadbolt on. Defendant tried to coax Miranda to come out of the house by
talking to her through the leaded glass window in the front door. Defendant told her to
come back and settle it at home. As Gayle was calling 911, Kevin said to defendant,
‘ “Go home, why don’t you just go home.” ’ Defendant replied, ‘ “I’ve got one for you
too, American.” ’ Soon the police arrived and took defendant into custody.
“Another neighbor, Stewart Lawrence, observed defendant coming out of the
Hunts’ house. As defendant crossed the street, he held up his shirt with his left hand,
exposing the lower two-thirds of his torso. Lawrence noticed ‘two or three small
rivulets’ of blood on defendant’s torso. In his right hand, defendant held what appeared
to be a six-to-eight-inch kitchen knife. Defendant advanced slowly toward the
Hunewells’ house, taunting Miranda and Gayle and repeating comments like, ‘ “Now you
know what it is like to deal with a man. I’m hurt too. I’ve been injured.” ’ Lawrence
tried to distract defendant by asking him if he wanted to talk about this. Defendant
stopped or slowed to look at Lawrence and said, ‘I don’t want to talk to you.’ After
seeing Miranda and Gayle retreat inside the house, Lawrence went to his own house and
dialed 911.
6.
“Hector Soria, a police officer with the Newman Police Department, testified that
he responded to one of the 911 calls. When he arrived, he saw defendant standing in the
street. Defendant turned to face Soria. He held a knife in his right hand and started to lift
up his shirt with his left hand. Soria saw blood and a stab wound on defendant’s chest.
Soria pointed his gun at defendant and ordered him to drop the knife. Defendant, who
was about 10 feet away, did not drop the knife but continued to walk toward Soria.
Defendant said, ‘ “Go ahead and shoot me. You want to kill me. Go ahead and shoot
me.” ’ Soria again ordered defendant to drop the knife, but he would not comply. When
defendant was about five feet away, Soria pulled the hammer on his gun. Defendant
tossed the knife on the ground, fell on his knees, and laid on his back.
“As he was being transported to the hospital, defendant told the paramedic his
chest wound was self-inflicted and made some comment about ‘abuse.’ At the hospital,
defendant told one of the nurses his mother-in-law was ‘constantly saying things to him
that he found upsetting and that … he had … heard those things again that day.’
Defendant told another nurse that the Hunts criticized him a lot and it was an ongoing
problem of putdowns. Defendant also told the nurse, ‘ “I went crazy,” “I hurt them all,
even my children,” and “I guess I sure came out of this … thing looking like the bad
guy.…” ’
“Police collected four knives from the crime scene, including one with a broken
tip. The pathologist testified that Mr. Hunt had 16 stab wounds and a bite mark on his
left ear. Mrs. Hunt had a total of 36 stab wounds. The pathologist opined that both
Mr. and Mrs. Hunt died from multiple stab wounds to the chest, a number of which
would have been fatal by themselves.”
PROCEDURAL BACKGROUND
“Defendant was charged by information with two counts of first degree murder
(counts 1 & 2; … § 187) and one count of attempted murder (count 3; §§ 664, 187).
Regarding all counts, it was alleged defendant personally used a deadly weapon within
7.
the meaning of section 12022, subdivision (b). Regarding counts 1 and 2, it was alleged
the special circumstance of multiple murder applied within the meaning of section 190.2,
subdivision (a)(3). Finally, regarding attempted murder, count 3, it was alleged
defendant acted intentionally, deliberately, and with premeditation, and inflicted great
bodily injury within the meaning of section 12022.7.
“Defendant pled not guilty and denied the enhancement allegations. He
subsequently pled not guilty by reason of insanity but withdrew the plea at trial.
“A jury found defendant guilty as charged and found all enhancement allegations
to be true. Following the jury’s penalty recommendation, the court sentenced defendant
to a prison term of life without the possibility of parole on counts 1 and 2. The court
imposed a consecutive sentence of life with the possibility of parole on count 3, plus four
years for the great bodily injury and personal use of a deadly weapon enhancements….”
Defendant’s First Appeal
On August 7, 2002, this court filed a nonpublished opinion that corrected the
calculation of defendant’s credits and otherwise affirmed his convictions and sentence
This court rejected defendant’s argument that the trial court had a sua sponte duty
to instruct the jury on voluntary manslaughter based on heat of passion as a lesser
included offense of the murder charges, based on the alleged actions by the Hunts. This
court first noted that “for tactical reasons the defense elected not to pursue a theory of
voluntary manslaughter,” and the defense strategy “was to argue the prosecution’s
evidence did not support a finding that the murders were deliberate or premeditated.
Thus, defense counsel argued in closing, ‘Now, just so we’re real clear, the defendant,
based on the evidence in front of you, is certainly guilty of a murder, two murders. He’s
also guilty of two murders in the second degree.’ ”
This court held the court did not have a sua sponte duty to instruct because there
was insufficient evidence to support defendant’s theory for voluntary manslaughter:
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“The record in this case does not support defendant’s contention the
killings occurred upon a sudden quarrel in the heat of passion. The jury
convicted defendant of two counts of first degree murder. The evidence
reflects, and the jury found, that defendant left and then returned to the
Hunts’ residence with the preconceived idea of killing the elderly couple.
When defendant entered the kitchen, he did not argue or even speak with
the Hunts. First, he walked slowly toward where Mrs. Hunt was standing.
Then, he walked over to the kitchen table, where Miranda was sitting with
Nayo in her lap. Miranda opened her arms to let defendant hug Nayo.
Instead, defendant stabbed Miranda twice in the chest and then once in the
leg. Defendant next commenced an attack on the Hunts, stabbing each of
them multiple times in the chest. These facts fail to demonstrate that there
was a sudden quarrel or that defendant killed the Hunts in the heat of
passion.
“We disagree that evidence of family tension, the argument about
the credit card bill, or Mrs. Hunt’s comment about giving the baby to Papa
constituted sufficient provocation to warrant voluntary manslaughter
instructions. Tension and even hostility between in-laws is not uncommon.
Defendant’s response to this tension was not that of an ordinary, reasonable
person of average disposition. Additionally, the facts show defendant had
time to cool down in the car while leaving for San Francisco but
deliberately instructed his wife to turn the car around so he could go back to
the house and launch his assault on the Hunts. Under the circumstances,
there was no error in failing to give sua sponte instructions on the heat-of-
passion theory of voluntary manslaughter.”
We further found that even if manslaughter instructions should have been given,
defendant did not suffer any prejudice from their omission: “The trial court instructed the
jury on first and second degree murder. The jury, by convicting defendant of first degree
rather than second degree murder, necessarily found the killings were willful, deliberate,
and premeditated. The jury was explicitly instructed that, to find the killings were the
result of deliberation and premeditation, the intent to kill ‘must have been formed upon
pre-existing reflection and not under a sudden heat of passion or other condition
precluding the idea of deliberation.…’ (Italics added.) Moreover, the jury necessarily
rejected the theory of the defense, which was that the evidence supported a finding of
second degree but not first degree murder. Because the jury’s finding of premeditation
9.
necessarily precluded a finding of heat of passion, defendant suffered no prejudice from
any possible error in failing to instruct on voluntary manslaughter.”
On October 16, 2002, the California Supreme Court denied defendant’s petition
for review.
SENATE BILL NOS. 1437 & 775
The instant appeal involves defendant’s petition for resentencing that he filed
pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess. (Senate Bill 1437)), that was
effective on January 1, 2019, and amended “ ‘the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act with the intent to kill, or
was not a major participant in the underlying felony who acted with reckless indifference
to human life.’ [Citation.]” (People v. Lewis (2021) 11 Cal.5th 952, 959, italics added
(Lewis).)
“Substantively, Senate Bill 1437 accomplishes this by amending section 188,
which defines malice, and section 189, which defines the degrees of murder, and as now
amended, addresses felony murder liability.” (People v. Martinez (2019) 31 Cal.App.5th
719, 723; People v. Gentile (2020) 10 Cal.5th 830, 842.)
“In addition to substantively amending sections 188 and 189 of the Penal Code,
Senate Bill 1437 added section 1170.95, which provides a procedure for convicted
murderers who could not be convicted under the law as amended to retroactively seek
relief. [Citation.]” (Lewis, supra, 11 Cal.5th at p. 959.)
“Pursuant to section 1170.95, an offender must file a petition in the sentencing
court averring that: ‘(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner
was convicted of first degree or second degree murder following a trial or accepted a plea
offer in lieu of a trial at which the petitioner could be convicted for first degree or second
10.
degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’
[Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the
appointment of counsel.’ [Citation.] If a petition fails to comply with subdivision (b)(1),
‘the court may deny the petition without prejudice to the filing of another petition.’
[Citation.]” (Lewis, supra, 11 Cal.5th at pp. 959–960.)
“Where the petition complies with [section 1170.95,] subdivision (b)’s three
requirements, then the court proceeds to subdivision (c) to assess whether the petitioner
has made ‘a prima facie showing’ for relief. [Citation.] [¶] If the trial court determines
that a prima facie showing for relief has been made, the trial court issues an order to show
cause, and then must hold a hearing ‘to determine whether to vacate the murder
conviction and to recall the sentence and resentence the petitioner on any remaining
counts in the same manner as if the petitioner had not … previously been sentenced,
provided that the new sentence, if any, is not greater than the initial sentence.’ [Citation.]
‘The prosecutor and the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.’ [Citation.] At the hearing stage,
‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is ineligible for resentencing.’ [Citation.]” (Lewis, supra, 11 Cal.5th at
p. 960.)
Lewis
In Lewis, the court interpreted the provisions of section 1170.95 and held that
petitioners “are entitled to the appointment of counsel upon the filing of a facially
sufficient petition [citation] and that only after the appointment of counsel and the
opportunity for briefing may the superior court consider the record of conviction to
determine whether ‘the petitioner makes a prima facie showing that he or she is entitled
to relief.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 957.)
11.
Lewis held that after appointing counsel, the trial court could rely on the record of
conviction to determine whether the prima facie showing is made “to distinguish petitions
with potential merit from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at
p. 971.) The record of conviction includes a prior appellate opinion, although it will be
case-specific. (Id. at p. 972.) The prima facie finding under section 1170.95,
subdivision (c) is limited, and the court must accept the petitioner’s factual allegations as
true and cannot reject the allegations on credibility grounds without conducting an
evidentiary hearing. (Lewis, at p. 971.) “ ‘However, if the record, including the court’s
own documents, “contain[s] facts refuting the allegations made in the petition,” then “the
court is justified in making a credibility determination adverse to the petitioner.” ’
[Citation.]” (Ibid.)
Senate Bill No. 775
In October 2021, Senate Bill No. 775 was enacted and amended section 1170.95,
effective on January 1, 2022. (2020-2021 Reg. Sess.; Stats. 2021, ch. 551, § 1 (Senate
Bill 775).) As a result of the amendments, section 1170.95 clarified that “persons
convicted of felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter,” may file a petition to have that conviction
vacated under certain circumstances. (§ 1170.95, subd. (a), italics added.)
The amendments also codified the holding in Lewis that a petitioner has the right
to appointment of counsel, if requested, prior to the court making the prima facie finding:
“Upon receiving a petition in which the information required by this subdivision is set
forth …, if the petitioner has requested counsel, the court shall appoint counsel to
represent the petitioner.” (§ 1170.95, subd. (b)(3).) After appointment of counsel, the
parties shall have the opportunity to submit briefing, and “the court shall hold a hearing
12.
to determine whether the petitioner has made a prima facie case for relief.” (§ 1170.95,
subd. (c).)
If the petitioner makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause. If the court declines to make an order
to show cause, it shall provide a statement fully setting forth its reasons for doing so.
(§ 1170.95, subd. (c).)
Senate Bill 775 also amended section 1170.95 to clarify that after the court issues
the order to show cause and conducts a hearing, the prosecution has the burden to prove
beyond a reasonable doubt that petitioner is guilty of murder or attempted murder under
the amended versions of sections 188 and 189. (§ 1170.95, subd. (d)(3).)
“The admission of evidence in the hearing shall be governed by the Evidence
Code, except that the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court may also consider the
procedural history of the case recited in any prior appellate opinion. However, hearsay
evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of
Section 872 shall be excluded from the hearing as hearsay, unless the evidence is
admissible pursuant to another exception to the hearsay rule. The prosecutor and the
petitioner may also offer new or additional evidence to meet their respective burdens. A
finding that there is substantial evidence to support a conviction for murder … is
insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2, eff.
Jan. 1, 2022.)
DEFENDANT’S SECTION 1170.95 PETITION
On March 20, 2019, defendant filed, in pro. per., a petition in the Superior Court
of Stanislaus County for resentencing pursuant to section 1170.95, using a preprinted
form, and marked the boxes to allege he was convicted of first or second degree murder
13.
pursuant to the felony-murder rule or the natural and probable consequences doctrine, he
was not the actual killer, he did not aid and abet the crimes with intent to kill, he was not
a major participant in the felony, he did not act with reckless indifference to human life
during the crime or felony, and the special circumstance finding did not bar him from
relief. Defendant requested appointment of counsel.
On March 29, 2019, the court appointed counsel for defendant.
The People’s Opposition
On May 14, 2019, the People filed opposition and argued defendant failed to make
a prima facie case and he was ineligible for relief, because he was convicted as the actual
killer, and the jury found he personally used a deadly weapon, the knife. As an exhibit to
the opposition, the People attached this court’s opinion that affirmed his convictions and
cited the factual and procedural statements.
The People argued the theories of felony murder or the natural and probable
consequences doctrine were not discussed or applied in defendant’s case. The statutes
that were amended by Senate Bill 1437 did not apply because defendant “acted alone
when he personally, intentionally and with premeditation murdered two people and
attempted to murder a third.”
The Court’s Denial of the Petition
On July 24, 2019, the court held a hearing on the petition and noted the People
filed opposition, but it was not served on defendant’s attorney. The court ordered the
People to serve counsel and continued the matter.
On August 27, 2019, defense counsel requested an extension of time to file a reply
to the People’s opposition. The court granted the motion and extended the time to
December 2, 2019. Defense counsel did not file a reply
On December 13, 2019, the court held a hearing on the petition. Defendant was
not present but represented by counsel, who waived defendant’s appearance. The court
denied defendant’s petition and found section 1170.95 did not apply since defendant did
14.
not “appear to be – to have been convicted of felony murder, and in fact the appellate
decision – I did not try this case, but the appellate decision indicates that the defendant
was the actual stabber of the victim in this case.” 3
On January 29, 2020, defendant filed a notice of appeal from the court’s order of
December 13, 2019, that denied his section 1170.95 petition.
DISCUSSION
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on April 27, 2020, we
invited defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist. 4
DISPOSITION
The judgment is affirmed.
3 The People’s opposition also asserted Senate Bill No. 1437 was unconstitutional.
The court declined to address the constitutional issue since it denied the petition on the
merits.
4 As required by Lewis and Senate Bill No. 775’s recent amendments, the court
appointed counsel to represent defendant, ordered the People to serve counsel with the
opposition, granted counsel’s request for a continuance to file a reply prior to a hearing
on the petition, and held a hearing on the petition and invited argument from both parties.
The superior court properly relied on this court’s opinion to find he was the actual
killer and deny the petition. (See, e.g., Lewis, supra, 11 Cal.5th at pp. 971–972.) The
record of his trial shows that defendant was convicted of first degree murder as the actual
killer who repeatedly stabbed the victims, and the jury was not instructed on felony
murder.
15.