People v. Riser CA2/2

Filed 4/5/23 P. v. Riser 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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, B318427
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA075152)
v.
DEANDRE BRANDON RISER,
Defendant and Appellant.
THE COURT:
Defendant and appellant Deandre Brandon Riser
(defendant) appeals from the denial of his petition for vacatur of
his murder conviction and for resentencing under Penal Code
former section 1170.95, now section 1172.6.1 As we conclude that
the trial court did not err, we affirm the court’s order.
BACKGROUND
In 2012 a jury convicted defendant of one count of first
degree murder and eight counts of attempted willful, deliberate,
and premeditated murder. The jury found true the special
allegations that defendant personally used and intentionally
discharged a firearm, causing great bodily injury or death to the
victims, and that the crimes were committed in association with a
criminal street gang. Defendant was sentenced to a term of 395
years to life in prison. After rejecting his claim that his jailhouse
conversation was recorded in violation of the Fourth Amendment
to the United States Constitution, we affirmed the judgment in
People v. Riser et al. (Oct. 1, 2014, B245327) [nonpub. opn.].
After defendant’s conviction, the Legislature passed Senate
Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), amending
sections 188 and 189, the laws pertaining to felony murder and
murder under the natural and probable consequences doctrine,
“to ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was not
a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f).) The Legislature also added what is now section 1172.6,
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.) We will refer to the section by its new numbering
only.
All further unattributed code sections are to the Penal Code
unless otherwise stated.
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which provides a procedure for those convicted of murder to seek
retroactive relief if they could not now be convicted under the
amended laws. (People v. Lewis (2021) 11 Cal.5th 952, 957.)
Defendant filed a section 1172.6 petition on July 2, 2021,
alleging that he had been convicted of murder under the felony
murder rule or the natural and probable consequences doctrine,
and that he was not the actual killer. The trial court appointed
counsel for defendant, the prosecutor filed a response in
opposition to the petition, and defendant filed a reply to the
opposition. The trial court, which had presided over defendant’s
2012 trial, reviewed the documents submitted by the parties,
which included our unpublished opinion in People v. Riser, supra,
B245327, and heard the argument of counsel. The court denied
the petition on February 8, 2022, after finding that defendant
had not demonstrated a prima facie case that he qualified for
relief under the statute, as he was prosecuted and convicted, not
as an aider and abettor under a felony murder theory, but as the
actual shooter who personally used a firearm.
Defendant filed a timely notice of appeal from the order of
denial.
DISCUSSION
After examination of the record, appointed counsel filed an
opening brief raising no issues. Where appointed counsel finds
no arguable issues in an appeal that is not the first appeal after
conviction, we are not required to conduct an independent review
of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, or
its federal constitutional counterpart, Anders v. California (1967)
386 U.S. 738. (People v. Delgadillo (2022) 14 Cal.5th 216, 226.)
However, even if we do not independently review the record to
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identify unraised issues in such a case, we give the defendant the
opportunity to file his own supplemental brief or letter and we
evaluate any specific arguments raised. (See id., at p. 232.)
Here, counsel provided defendant with a copy of the record
on appeal, informed him of his right to file his own supplemental
brief, and that the court of the appeal may dismiss his appeal as
abandoned if he does not do so. On January 10, 2023, we notified
defendant of counsel’s brief and gave him 30 days to file his own
letter or brief stating any grounds for an appeal, contentions, or
arguments that he wished to be considered. More than 30 days
have elapsed since defendant was so notified and to date,
defendant has not filed a supplemental brief or letter. As
defendant has failed to raise any arguments to be addressed, we
may dismiss the appeal as abandoned.
Nevertheless, we affirm the court’s order based upon a
limited review, as “appellate courts can often readily confirm that
a defendant is ineligible for relief as a matter of law without
conducting an independent review of the entire record.” (People
v. Delgadillo, supra, 14 Cal.5th at p. 230.) At appointed counsel’s
request we have taken judicial notice of the appellate record in
People v. Riser, supra, B245327, and we have reviewed the
verdicts rendered against defendant, the jury instructions, and
the procedural history set forth in the appellate opinion. During
the prima facie review, if the record of conviction contains facts
refuting the allegations of the petition as a matter of law, no
prima facie showing can be made, and the petition is properly
denied. (People v. Lewis, supra, 11 Cal.5th at p. 971.) For
example, where the record shows that no jury instructions were
given regarding felony murder or the natural and probable
consequences doctrine, or that the petitioner was the actual
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killer, he is ineligible for relief as a matter of law. (People v.
Harden (2022) 81 Cal.App.5th 45, 52-53, 55-56.)
Here, no instructions were given to the jury in defendant’s
2012 trial regarding the felony murder rule or the natural and
probable consequences doctrine. Moreover, defendant was
convicted of first degree murder and the jury found true the
allegation that defendant had personally and intentionally
discharged a firearm (a rifle) which proximately caused great
bodily injury and death to the murder victim. This verdict and
the jury’s finding demonstrate that defendant was the actual
killer and ineligible for relief under section 1172.6 as a matter of
law. (See People v. Harden, supra, 81 Cal.App.5th a pp. 55-56.)
DISPOSITION
The order denying the section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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