People v. Kersting CA1/1

Filed 3/1/21 P. v. Kersting CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A159901
v.
MORRIS KERSTING, (Solano County
Super. Ct. No. FC 18026)
Defendant and Appellant.
Morris Kersting appeals from an order summarily denying his petition
under Penal Code1 section 1170.95, which permits a person convicted of
felony murder or murder under a natural and probable consequences theory
to seek resentencing. Kersting’s appellate counsel filed a brief asking this
court to conduct an independent review of the record for arguable issues, and
Kersting was informed that he could file a supplemental brief but did not do
so. We affirm.
I.
BACKGROUND
“Effective January 1, 2019, Senate Bill [No.] 1437 [(2017–2018 Reg.
Sess.) (Senate Bill No. 1437) (Stats. 2018, ch. 1015)] amended murder
liability under the felony-murder and natural and probable consequences
1 All further statutory references are to the Penal Code.
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theories. The bill redefined malice under section 188 to require that the
principal acted with malice aforethought. Now, ‘[m]alice shall not be imputed
to a person based solely on his or her participation in a crime.’ (§ 188,
subd. (a)(3).)” (People v. Turner (2020) 45 Cal.App.5th 428, 433.) The bill
also amended section 189 to provide that a defendant who was not the actual
killer and did not have an intent to kill is not liable for felony murder unless
he or she “was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d) of
Section 190.2.” (§ 189, subd. (e).)
Senate Bill No. 1437 also enacted section 1170.95, which authorizes “[a]
person 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” so long as three conditions are met:
“(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 degree murder. [¶] (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.” (§ 1170.95, subd. (a).)
Any petition that fails to make “a prima facie showing that the petitioner
falls within the provisions of [section 1170.95]” may be denied without an
evidentiary hearing. (§ 1170.95, subds. (c) & (d).)
In February 2019, Kersting filed a petition under section 1170.95,
averring that in 1985 he was convicted at trial of second degree murder on a
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theory of felony murder or under the natural and probable consequences
doctrine and could no longer be convicted of murder because of changes to the
law made by Senate Bill No. 1437. He also requested that counsel be
appointed, and the trial court appointed an alternate public defender to
represent him.
A few months later, the prosecution filed a response to the petition,
arguing that Kersting failed to make a prima facie showing that he was
eligible for resentencing. Specifically, the prosecution contended that
Kersting “acted with the intent to kill and/or was a major participant who
acted with reckless indifference to human life” because he “[held] down the
victim while others stabbed him to death.”2
At a hearing on the petition in late September 2019, Kersting’s counsel
stated he had read the trial transcript and had not “seen anything that
suggests Mr. Kersting does qualify for relief under [section] 1170.95.”3
Noting that he still had some materials to review, however, counsel asked the
trial court to find, without prejudice, that Kersting had not made a prima
facie showing of entitlement to relief. The court agreed and dismissed the
petition on that ground without prejudice. The record does not reflect that
any further action was taken on the petition below.
II.
DISCUSSION
A. Kersting’s Notice of Appeal Was Timely.
Initially, we address the timeliness of Kersting’s notice of appeal. The
trial court’s order denying the petition was filed on September 30, 2019, after
2 No other facts about the murder are mentioned in our record.
3 Earlier that month, Kersting had filed another section 1170.95
petition in which he made the same claims raised in his original petition.
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the hearing mentioned above (at which Kersting was not present). Several
months later, Kersting sent a letter inquiring about the petition’s status,
which the trial court received on February 3, 2020. The following month,
Kersting filed a notice of appeal from the September 2019 order, noting he
had received notice of the petition’s denial on February 12, 2020. The notice
of appeal was filed on March 9, 2020.
A notice of appeal in a criminal case generally must be filed within 60
days after “the making of the order being appealed.” (Cal. Rules of Court,
rule 8.308(a).) Kersting’s appellate counsel contends that the notice of appeal
was nonetheless timely based on principles applying to prisoners, and the
Attorney General has not sought to dismiss the appeal. We agree that the
appeal was timely filed. “[T]he period for filing a notice of appeal does not
begin to run against a prisoner, whose only contact with the courts is through
the mail, until the prisoner receives the order from which [the prisoner] seeks
to appeal.” (People v. Griggs (1967) 67 Cal.2d 314, 318.) Here, the record
indicates that Kersting did not learn of the petition’s denial until mid-
February 2020, and he filed the notice of appeal less than a month later.
Accordingly, the notice was timely under Griggs.
B. No Arguable Issues Appear in the Limited Record Before Us.
A defendant appealing from the summary denial of a section 1170.95
petition is not entitled to an independent review of the record under People v.
Wende (1979) 25 Cal.3d 436 (Wende). Rather, as numerous “federal and
California opinions have repeatedly and consistently held[,] . . . an appellate
court’s obligation to conduct an independent review of the record only applies
when appointed counsel raises no arguable issues in a criminal defendant’s
first appeal as a matter of right.” (People v. Flores (2020) 54 Cal.App.5th 266,
271.)
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Accordingly, instead of seeking Wende review, Kersting’s appellate
counsel contended that this court “should conduct an independent review of
the record for arguable issues” under Flores. Flores determined that, in the
interests of justice, “an appellate court can and should independently review
the record on appeal when an indigent defendant’s appointed counsel has
filed a Wende brief in a postjudgment appeal from a summary denial of a
section 1170.95 petition.” (People v. Flores, supra, 54 Cal.App.5th at pp. 273–
274; accord People v. Gallo (2020) 57 Cal.App.5th 594, 599.) Other decisions,
however, have declined to conduct an independent review as a matter of
course. Rather, they have concluded that if counsel files a no-issues brief, the
better procedure is to provide an opportunity to file a supplemental brief and,
if the defendant does not do so, dismiss the appeal as abandoned without
conducting an independent review. (People v. Cole (2020) 52 Cal.App.5th
1023, 1028, review granted Oct. 14, 2020, S264278; accord People v. Figueras
(Feb. 22, 2021, C089228) __ Cal.App.5th __ [pp. 4–5]; People v. Scott (2020)
58 Cal.App.5th 1127, 1129–1130.)
Here, we need not decide what our normal course will be when
appellate counsel files a no-issues statement in an appeal from the summary
denial of a section 1170.95 petition. The limited record before us contains
almost no information about Kersting’s conviction or the underlying crime,
much less any hint that Kersting was convicted based on a now-invalid
theory of murder. Moreover, the trial court denied the petition at Kersting’s
counsel’s request. Thus, it poses little additional burden on us to conduct an
independent review in this case. (Cf. People v. Scott, supra, 58 Cal.App.5th at
pp. 1133–1135.) Having done so, we conclude that no arguable issues exist.
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III.
DISPOSITION
The September 30, 2019 order denying Kersting’s section 1170.95
petition is affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Sanchez, J.
People v. Kersting A159901
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