People v. Valentine CA2/2

Filed 1/12/23 P. v. Valentine CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B319633
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A366030)
v.
JOE LOUIS VALENTINE,
Defendant and Appellant.
THE COURT:
Joe Louis Valentine (defendant) appeals the order of the
superior court denying his petition for resentencing under Penal
Code1 section 1172.6 (former section 1170.95).2 We appointed
1 All further statutory references are to the Penal Code
unless otherwise indicated.
counsel to represent defendant on appeal. After an examination
of the record, counsel filed an opening brief raising no issues and
asking this court to independently review the record. Defendant
filed his own supplemental brief, in propria persona.
Finding no arguable error that would result in a disposition
more favorable to defendant, we affirm.
3
BACKGROUND
In January 1981, defendant and other gang members
decided to avenge the death of one of their own by targeting
members of a rival gang. Defendant, armed with a firearm, went
to a gym located in the rival gang’s territory, confronted several
people and fired one shot into the ceiling. As defendant exited
the gym, he exchanged words with another man and then shot
him in the head, killing him. Defendant was convicted by jury of
conspiracy to commit murder (§§ 182, 187) with a true finding on
the allegation that a principal was armed with a firearm in the
commission of the offense (§ 12022, subd. (a)). The trial court
sentenced defendant to a state prison term of 26 years to life
comprised of 25 years to life for the conspiracy to commit murder
and one additional year for the firearm enhancement.
On appeal from the judgment of conviction, we modified the
judgment to correct the abstract of judgment, which had
erroneously documented a sentence of 16 years for defendant
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
For the sake of simplicity, we will refer to the section by its new
numbering only.
3 The following facts are drawn from this court’s unpublished
decision in defendant’s direct appeal from his conviction. (People
v. Valentine (Oct. 3, 1983, 2 Crim. No. 42591) [nonpub. opn.].)
2
(rather than the 26 years to life sentence orally imposed by the
trial court). In all other respects, we affirmed the judgment.
On January 3, 2022, defendant filed, in propria persona, a
4
petition for resentencing pursuant to section 1172.6.
On March 3, 2022, the trial court summarily denied the
petition for resentencing stating, in pertinent part, “defendant’s
jury trial resulted in conviction on April 20, 1982, of conspiracy to
commit murder . . . consequently, . . . defendant fails to meet the
requirements of Penal Code section [1172.6] and is statutorily
ineligible for such relief.”
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Because the instant appeal is not from his conviction,
defendant is not entitled to our independent review of the record
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) or its
federal constitutional counterpart, Anders v. California (1967)
386 U.S. 738. (People v. Delgadillo (2022) 14 Cal.5th 216, 221-
222, 224, 230; see People v. Kelly (2006) 40 Cal.4th 106, 119,
(Kelly) [independent judicial review mandated by Anders applies
only to first appeal as of right]; People v. Serrano (2012) 211
Cal.App.4th 496, 503 (Serrano).) However, he is entitled to
appellate consideration of the contentions raised in his
supplemental brief. (See Serrano, at p. 503.)
In his supplemental brief, defendant contends that the
evidence was insufficient to convict him of conspiracy to commit
murder. The argument defendant raises in his supplemental
brief constitutes a collateral attack on the judgment not within
4 On February 17, 2022, defendant filed a three-page
addendum to his section 1172.6 petition for resentencing.
3
the purview of section 1172.6 nor, therefore, cognizable on appeal
5
from an order denying relief under that statute.
In conclusion, based on our examination of the entire
record, we are satisfied that defendant’s attorney has fully
complied with his responsibilities and that no arguable issues
exist. (Kelly, supra, 40 Cal.4th at pp. 109-110; Wende, supra, 25
Cal.3d at p. 441.)
DISPOSITION
The order denying defendant’s petition for resentencing
pursuant to Penal Code section 1172.6 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
——————————————————————————————
ASHMANN-GERST, Acting P. J., CHAVEZ, J., HOFFSTADT, J.
5 Defendant also requests judicial notice of a recent
California Supreme Court ruling discussing the sufficiency of
evidence required to support a conviction for conspiracy to
commit murder. We decline to grant judicial notice for the reason
stated above.
4