People v. Edinbyrd CA4/1

Filed 8/5/21 P. v. Edinbyrd CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078743
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1311514)
ROBERT GENE EDINBYRD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Charles J. Koosed, Judge. Affirmed.
Robert Gene Edinbyrd, in pro. per.; and David P. Lampkin, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2015, a jury convicted Robert Gene Edinbyrd of three counts of
premeditated attempted murder (Pen. Code,1 §§ 187, subd. (a) and 664). The
jury also found true a gang enhancement (§ 186.22, subd. (b)) and a firearm
enhancement (§ 12022.53, subds. (c), (d)). Edinbyrd, who was 16 years old at
1 All further statutory references are to the Penal Code.
the time of the offense, was sentenced to an indeterminate term of 95 years to
life in prison.
Edinbyrd appealed, and this court issued a conditional reversal of the
convictions, pending remand for three purposes. First, the case was
remanded to permit Edinbyrd to pursue a transfer to juvenile court in light of
the passage of Proposition 57, the Public Safety and Rehabilitation Act of
2016, while his case was pending appeal. Second, remand was necessary for
Edinbyrd to have a “Franklin”2 hearing if the case was not transferred to
juvenile court. Third, it was remanded to permit Edinbyrd the opportunity to
file a motion to strike the firearm enhancements. Depending on the outcome,
the trial court would be required to amend the abstract of judgment.
(People v. Walker et al. (Aug. 31, 2018, D073712) [nonpub. opn.].)
On remand the juvenile court determined Edinbyrd was not fit for
juvenile court and returned the case to the criminal court. The trial court
denied the defense motion to strike the firearm enhancements and reinstated
the original judgment Edinbyrd did not file a notice of appeal from the
reinstated judgment. He did send a letter to the court indicating he wished
to appeal, but the court did not act upon the letter, which was not reviewed
due to the COVID-19 shutdown.
In February 2021, the court conducted a Franklin hearing.
There were further communications from Edinbyrd to the trial court
about his desire to appeal the judgment. The material was sent to defense
counsel. The record does not contain any efforts by counsel to file a late
notice of appeal from the reinstated judgment. A notice of appeal from the
Franklin hearing was timely filed.
2 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
2
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Edinbyrd the opportunity
to file his own brief on appeal. Edinbyrd has responded by filing a
supplemental brief. We will discuss his submission below.
STATEMENT OF FACTS
The facts of the offenses are fully set forth in our prior opinion. Given
the proceedings which are the subject of this appeal, we will not repeat the
facts here.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review and
in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has identified the following possible issues that were considered in evaluating
the potential merits of this appeal:
1. Did the court err at the September 25, 2020 hearing when the court
declined to exercise its discretion to strike the firearm enhancements and
failed to advise Edinbyrd of his appellate rights?3
2. Should the trial court have taken action on Edinbyrd’s letter
regarding his desire to appeal?
3 This appeal is from the February 2021 Franklin hearing. No efforts
were made by the defense in the trial court to remedy the failure to appeal
from the September 2020 hearings. There is no record on which we can act
regarding the resentencing or the failure to seek relief from the failure to file
a timely notice of appeal. The appropriate remedy, if any, is a petition for
habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264.)
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3. Did defense counsel provide ineffective assistance of counsel when
he failed to file a timely notice of appeal from the September hearings?
4. Did the trial court abuse its discretion in refusing to strike the
firearm enhancements?
5. Did defense counsel provide ineffective assistance of counsel at the
Franklin hearing?
Edinbyrd filed a supplemental brief. The primary subject of the brief is
a discussion of the fact that he was a child at the time of the offense. He
discusses his difficult childhood and the circumstances of his youth that led to
his current situation. He asks this court for some form of help, although it is
unclear what the court could do to help him. Edinbyrd complains about the
admission of his statements at trial and his failure to understand his
Miranda4 rights. He also complains that current appellate counsel has not
challenged the trial court’s admission of his statements at trial. He does not
address the fact that this appeal is from postjudgment orders and not an at-
large review of the history of his case. Edinbyrd’s supplemental brief does
not raise any arguable issues for reversal in this appeal.
We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal based on
the record before us. Competent counsel has represented Edinbyrd on this
appeal.
4 Miranda v. Arizona (1966) 384 U.S. 436.
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DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
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