People v. Cote CA4/2

Filed 11/24/20 P. v. Cote 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E074976
v. (Super.Ct.No. CR44272)
FREDRICK RAYMOND COTE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
In July 1994, a jury convicted defendant and appellant Fredrick Raymond Cote of
four counts: murder with the special circumstances of intentional killing for financial
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gain and intentional killing of a victim while lying in wait (Pen. Code, §§ 187, 190.2,
subd. (a)(1) & (a)(15))1; committing a murder for financial gain; conspiracy with another
to commit the murder (§§ 182, 187); entering an inhabited dwelling to commit theft and a
felony (§ 459); and willful and unlawful violation of the personal liberty of another by
means of violence, menace, fraud, and deceit (§ 236).
The court sentenced defendant to three years in state prison for the violation of
personal liberty, and a life sentence without possibility of parole to commence following
the three-year term. The sentences imposed for committing murder for financial gain and
conspiracy were stayed pursuant to section 654.
In 2018, the Legislature enacted section 1170.95 (Stats. 2018, ch. 1015, § 4, eff.
Jan. 1, 2019), a provision that authorizes a person convicted of felony murder or murder
under a natural and probable consequences theory to file with the sentencing court a
petition to vacate the conviction and be resentenced.
On December 20, 2019, defendant filed a section 1170.95 petition for
resentencing. When his case was called on February 28, 2020, defendant was not present
but was represented by counsel. The People moved to dismiss the petition on the grounds
that section 1170.95 relief was not available to defendant because he was convicted of
crimes requiring an intent to kill (murder with the special circumstances of murder for
financial gain and lying in wait require intent to kill, and conspiracy to kill the victim).
1 All further statutory references are to the Penal Code.
2
Defense counsel objected for the record and submitted the matter. The court dismissed
the petition. Defendant appealed.
DISCUSSION
Defendant’s counsel has filed a brief under the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S 738, setting forth a
statement of the case, a summary of the facts, and two potential arguable issues:
(i) whether defendant’s petition for resentencing established a prima facie case for relief
under section 1170.95 for resentencing, thereby requiring the trial court to issue an order
to show cause, and (ii) whether the trial court erred when it summarily dismissed
defendant’s petition without permitting him or his counsel to present evidence to
establish a prima facie case for relief under section 1170.95. Counsel also requested this
court to undertake a review of the entire record.
When, in an indigent defendant’s first appeal of right, appointed appellate counsel
files an opening brief that does not present an arguable issue, it is well settled that the
appellate court is required to offer the defendant an opportunity to submit a personal
supplemental brief and to review the entire record whether or not the defendant files a
brief. (Wende, supra, 25 Cal.3d at pp. 441-442.)
We acknowledge People v. Cole (2020) 52 Cal.App.5th 1023, 1032, review
granted October 14, 2020, S264278, held the constitutional bases for Wende procedures
apply only to a defendant’s direct appeal from the judgment. We also recognize,
however, that we have discretion to exercise our inherent supervisory powers to apply
Wende procedures to appeals from denials of postconviction relief in which appointed
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appellate counsel files a no-issues brief. (Cole, at pp. 1038-1039 [Second App. Dist.,
Div. Two, did not review the record and exercised discretion to dismiss the appeal as
abandoned when defendant did not file a supplemental brief]; People v. Flores (2020) 54
Cal.App.5th 266, 269, 273-274 [Div. Three of this court exercised discretion to conduct
independent review of the record even though defendant did not file a supplemental
brief]; see generally Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fns. 7, 8
[court has inherent power to retain or dismiss an appeal from a conservatorship
proceeding upon receipt of a no-issues brief from appointed counsel].)
In this case, appointed appellate counsel filed a no-issues brief from orders
denying an indigent defendant postconviction relief. We offered defendant an
opportunity to file a personal supplemental brief, which he has not done. We exercised
our discretion to conduct an independent review of the record in keeping with People v.
Kelly (2006) 40 Cal.4th 106 and found no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
I concur:
McKINSTER
J.
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[People v. Cote, E074976]
Slough, J., Dissenting.
As I’ve explained more fully in several unpublished dissents, I continue to
disagree with this majority’s routine application of the standard Anders/Wende1 review
process to appeals of postconviction orders denying petitions for resentencing under
Penal Code section 1170.95. In my view, this appeal should have been dismissed by an
order, a process we routinely follow in similar situations. Maybe there are circumstances
justifying a dismissal by opinion, but the majority has provided none, and a full Wende
review is certainly not appropriate in this case.
That’s primarily because a full review of the record would be pointless. A cursory
look at the issues on appeal reveals Cote is categorically not entitled to Penal Code
section 1170.95 relief. You can tell simply by reading counsel’s opening brief.
Here’s all we need to know. In 1994, a jury convicted Cote of first degree murder
(Pen. Code, § 182, unlabeled statutory citations refer to this code), conspiring to commit
murder (§ 187/182); burglary (§ 459), and false imprisonment (§ 236). The jury also
found he committed the murder for financial gain (§ 190.2(a)(1)) and by means of lying
in wait (§ 190.2(a)(15)). The murder and conspiracy convictions were based on the fact
that Cote paid an employee to kill his estranged wife’s boyfriend. (Appellant’s Opening
Brief p. 6.)
1 Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.
1
The only issue presented by Cote’s petition is whether he can avail himself of a
substantive change in the definition of murder. In 2018, the Legislature amended the
offense by removing “exceptions that had allowed . . . convictions despite the absence of
malice. . . . [As amended] Penal Code sections 188 and 189 [now] restrict the scope of
first degree felony murder and eliminate second degree murder based on the natural and
probable consequences doctrine.” (People v. Johns (2020) 50 Cal.App.5th 46, 58.) In
short, the law of murder now requires some degree of intent. The new legislation also
added a petitioning process under section 1170.95 allowing offenders convicted of
murder without the required intent to take advantage of these changes. (Johns, at p. 59.)
In December 2019, Cote filed a section 1170.95 petition for resentencing. The
People moved to dismiss the petition on the grounds section 1170.95 relief was
categorically unavailable to Cote because he was convicted of crimes requiring the intent
to kill (murder with the special circumstances of murder for financial gain and lying in
wait require intent to kill, as well as conspiracy to kill the victim). The trial court got it
and dismissed the petition without a hearing. That’s all we need. We clearly don’t need to
review every page of the record to understand that under these circumstances Cote’s
petition is meritless.
Maybe a full review could be warranted in some circumstances. For example,
there may be cause for greater caution in a case where the petitioner was convicted under
a felony murder or natural and probable consequences theory, but the trial judge found
they weren’t entitled to relief after reviewing the trial transcript and taking additional
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evidence at a hearing under section 1170.95, subdivision (d). (See People v. Bascomb
(2020) 55 Cal.App.5th 1077.) This is not such a case. Cote wasn’t convicted of felony
murder or natural and probable consequences murder and intended his victim’s murder.
Yet my colleagues apply Wende anyway and maintain a steadfast silence on their
rationale for doing so. What are they looking for? Something to suggest the conviction
was for an offense other than those identified in counsel’s opening brief? Were they
looking for other appealable issues? Doubtful, as this majority would almost certainly
conclude Cote had forfeited any issue they might unearth in their review. In the end, I
have no idea why they felt justified in taking the time to go through the record in this
case. I am equally in the dark on what they learned in the process, since their analysis
consists entirely of the boilerplate statement, “We exercised our discretion to conduct an
independent review of the record in keeping with People v. Kelly (2006) 40 Cal.4th 106and found no arguable issues.” (Maj. Opn. ante, at p. 4.)
The majority rely on People v. Cole (2020) 52 Cal.App.5th 1023 as a basis for
exercising their discretion to do a full review. I don’t dispute that we have such
discretion. However, absent an articulated basis particular to the case under review, I
believe the majority abuses its discretion by exercising it. It speaks volumes that they
have chosen not to articulate their basis in response to my raising the question. As the
Cole decision itself holds, we also have the discretion to order the case dismissed as
abandoned because neither counsel nor the appellant were able to identify any arguable
issues. I would do that here.
3
Since the majority has not articulated a rationale for treating this particular section
1170.95 case differently from other appeals that do not involve the constitutional right to
counsel, I dissent.
SLOUGH
J.
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