People v. Royle CA4/1

Filed 1/19/23 P. v. Royle CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080881
Plaintiff and Respondent,
v. (Super. Ct. No. SCE276920)
KEVIN CHRISTOPHER ROYLE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Frank L. Birchak, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2009, a jury convicted Kevin Christopher Royle of first degree
murder (Pen. Code,1 § 187, subd. (a)) and found true firearm allegations that
Royle personally, and intentionally discharged a firearm causing great bodily
injury and death (§§ 12022.53, subd. (d), 12022.5, subd. (a)). Royle was
1 All further statutory references are to the Penal Code.
sentenced to an indeterminate term of 75 years to life plus a determinate
term of 16 years in prison.
Royle appealed his conviction, and this court affirmed the judgment in
an unpublished opinion. (People v. Royle (Dec. 22, 2010, D055377).)
In 2022, Royle filed a petition for resentencing under section 1172.6
(former section 1170.95).
The trial court appointed counsel, received briefing, and reviewed the
record of conviction. After conducting a hearing, the court found the
petitioner had not stated a prima facie case for relief under the statute. The
court said:
“All right. The Court is relying in part on People v. Lewis, a
2021 California Supreme Court case, 11 Cal.5th
952, . . . 972, which says the trial court should use the
record of conviction in assessing whether or not a prima
facie showing was found. The Court is also considering
People v. Cornelius, [(]2020[)] 44 Cal.App.5th 54, . . . 58,
which discusses the intentional use of a firearm being
evidence that somebody falls outside of felony murder,
aiding and abetting, or natural and probable consequences.
The Court’s also considering People v. Daniel, [(]2020[)] 57
Cal.App.5th 666, . . . 677, which indicates when someone
was—when the jury was only instructed under CALCRIM
520, that is evidence that they were not convicted under
either of the three theories. Also is considering People v.
Edwards, [(]2020[)] 48 Cal.App.5th 666, . . . 674, again,
having to do with how somebody was charged. And then
People v. Tarkington, [(]2020[)] 49 Cal.App.5th, 892, . . . ,
889, again, with the use of—personal use of a deadly
weapon, indicating they do not qualify for relief. Based on
all of those, the Court is denying the petition without an
order to show cause hearing.”
Royle filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any
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arguable issues for reversal on appeal. Counsel asks the court to
independently review the record for error as mandated by Wende. We offered
Royle the opportunity to file his own brief on appeal, but he has not
responded.
This court reviewed the facts of the offense in our prior opinion. We do
not find it necessary to repeat the facts here.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review, and
in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has identified several possible issues that were considered in evaluating the
potential merits of this appeal.
1. Whether this court should conduct an independent review of the
record in accordance with the procedure established by Wende.
2. Whether Royle’s petition demonstrated a prima facie case for relief,
which would require the court to issue an order to show cause.
3. Whether the trial court’s denial of the petition was prejudicial error.
We have independently reviewed the record as required by Wende and
Anders. We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Royle on this appeal.
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DISPOSITION
The order denying Royle’s petition for resentencing under
section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
DO, J.
BUCHANAN, J.
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