People v. Bishop CA4/2

Filed 1/13/21 P. v. Bishop CA4/2
See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075594
v. (Super.Ct.No. RIF101137)
JAIME BILLY BISHOP, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Dismissed.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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I
INTRODUCTION
In 2003, defendant and appellant Jaime Billy Bishop was convicted of first degree
murder (Pen. Code,1 § 187, subd. (a)) with a lying-in-wait special circumstance allegation
(§ 190.2, subd. (a)(15)). Approximately 17 years later, defendant filed a petition for
resentencing pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.) and
section 1170.95, which the trial court dismissed.
Defendant appeals from the postjudgment order dismissing his section 1170.95
petition for resentencing. Appointed appellate counsel filed an opening brief that sets
forth the facts of the case and asks this court to review the record and determine whether
there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436(Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) Under the circumstances
of this case, we decline to exercise our discretion to conduct a full-scale Wende review
and dismiss the appeal as abandoned.
II
FACTUAL AND PROCEDURAL BACKGROUND2
On December 25, 2001, defendant helped Norbert “Bob” Nieto induce Bob’s wife,
Tisha, to meet them at a secluded rendezvous. Bob and defendant then lured Tisha into
1 All future statutory references are to the Penal Code unless otherwise stated.
2 A brief summary of the factual background is taken from this court’s
nonpublished opinion in defendant’s prior appeal, case No. E035166. (People v. Bishop
(Oct. 5, 2004, E035166) [nonpub. opn.].)
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defendant’s car. They choked and strangled her. They then dumped her body at a remote
location.
On September 24, 2003, defendant was convicted of aiding and abetting first
degree murder (§ 187, subd. (a)) while lying in wait (§ 190.2, subd. (a)(15)) and was
sentenced to life imprisonment without the possibility of parole.
Defendant subsequently appealed, contending that the evidence was insufficient to
support a lying-in-wait special circumstance finding. On October 5, 2004, we affirmed
the conviction and sentence.
On January 1, 2019, Senate Bill No. 1437 became effective (2017-2018
Reg. Sess.), which amended the felony-murder rule and the natural and probable
consequences doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).)
Senate Bill No. 1437 also added section 1170.95, which allows those “convicted of
felony murder or murder under a natural and probable consequences theory . . . [to] file a
petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts . . . .” (§ 1170.95,
subd. (a).)
On June 5, 2020, defendant in propria persona filed a petition for resentencing
pursuant to section 1170.95, subdivision (a).
A hearing on the petition was held on July 31, 2020. At that time, the prosecutor
advised the trial court that he had reviewed the record and shared his notes with defense
counsel. The prosecutor also stated that “There were no instructions on felony murder or
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natural and probable consequences. In fact, it was a special circumstance case. He
[defendant] was sentenced to LWOP, meaning he was at least a major participant with
reckless indifference. He cannot qualify. Based on the record of conviction, he cannot
meet the basic elements of eligibility. So we would ask the Court to summarily deny the
petition.” Defendant’s appointed counsel agreed with the prosecutor’s “assertion of the
facts and the record of conviction” and simply objected “for the record.” The trial court
noted that it was persuaded by the People’s argument and dismissed the petition.
Defendant filed a timely notice of appeal on August 26, 2020.3
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to
represent him on appeal. Counsel has filed a brief under the authority of Wende, supra,
25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, a
summary of the procedural background and potential arguable issues,4 and requesting this
court to conduct an independent review of the record.
3 We granted appellate counsel’s request to take judicial notice of the record on
appeal from defendant’s prior appeal in case No. E035166.
4 Appellate counsel notes the potential issues as: (1) whether defendant is eligible
for relief under section 1170.95 given the facts as proffered by the People and agreed to
by defense counsel; (2) whether defense counsel’s objection for the record was sufficient
to preserve any issue on appeal; and (3) whether the jury instructions from the underlying
record on appeal, which reflect the jury was not instructed on either felony murder or the
natural and probable consequences theory of aiding abetting, disqualifies defendant from
potential relief under section 1170.95, subdivisions (d) and (e).
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We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so. Thus, no claim of error has been raised.
Review pursuant to Wende, supra, 25 Cal.3d 436 or its federal constitutional
counterpart Anders, supra, 386 U.S. 738, in which we read the entire record ourselves to
search for arguable grounds for reversal, is required only in the first appeal of right from
a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555;
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537 (Ben C.); People v. Serrano
(2012) 211 Cal.App.4th 496, 500-501 (Serrano); People v. Thurman (2007) 157
Cal.App.4th 36, 45; People v. Cole (2020) 52 Cal.App.5th 1023, 1028, 1032, review
granted Oct. 14, 2020, S264278 [Wende’s constitutional underpinnings do not apply to
appeals from the denial of postconviction relief, and when a defendant fails to file a
supplemental brief, an appellate court may dismiss the appeal as abandoned].)
The right to Anders/Wende review applies only at appellate proceedings where
defendant has a previously established constitutional right to counsel. (Serrano, supra,
211 Cal.App.4th at p. 500; Ben C., supra, 40 Cal.4th at pp. 536-537.) The constitutional
right to counsel extends to the first appeal of right, and no further. (Serrano, at pp. 500-
501.) The appeal before us, “although originating in a criminal context, is not a first
appeal of right from a criminal prosecution, because it is not an appeal from the judgment
of conviction.” (Id. at p. 501.) While a criminal defendant has a right to appointed
counsel in an appeal from an order after judgment affecting his substantial rights (Pen.
Code, §§ 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c)), that right is statutory, not
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constitutional. Thus, defendant is not entitled to Wende review in such an appeal. (See
Serrano, at p. 501 [no Wende review for denial of postconviction motion to vacate guilty
plea pursuant to Pen. Code, §1016.5].)
While we acknowledge that a Court of Appeal may exercise its discretion to
conduct an independent review of the entire record and that no legal authority prohibits
us from doing so in the interests of justice (see People v. Flores (2020) 54 Cal.App.5th
266, 269, 273; People v. Gallo (2020) 57 Cal.App.5th 594, 598), we decline to do so in
this case. Defendant’s trial involved neither the felony-murder rule nor the natural and
probable consequences doctrine. Thus, section 1170.95 and Senate Bill No. 1437 are
inapplicable to defendant’s murder conviction while lying-in-wait.
Because neither defendant nor his counsel has raised any claim of error in the trial
court’s dismissal of the petition at issue here and because this appeal concerns a
postjudgment proceeding in which there is no constitutional right to counsel, we dismiss
defendant’s appeal as abandoned.
IV
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
I concur:
MENETREZ
J.
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[People v. Bishop, E075594]
MILLER, J., Dissenting
Based upon People v Flores (2020) 54 Cal.App.5th 266 I would have conducted
an independent review of the record “in the interest of justice.” (Id. at p. 269.)
MILLER
Acting P. J.
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