People v. Morris CA1/5

Filed 3/9/22 P. v. Morris CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A163154
v.
PHILLIP MORRIS , (Alameda County
Defendant and Appellant. Super. Ct. No. 105275)
This is an appeal from a postjudgment order denying defendant Phillip
Morris’s petition for resentencing under Penal Code1 section 1170.95
(hereinafter, petition). By this petition, defendant seeks relief from the 15
years to life sentence he received after pleading no contest to second degree
murder. Admittedly, defendant shot his wife about 11 times in the heat of an
argument.
Defendant’s appointed appellate counsel filed a brief under People v.
Wende (1979) 25 Cal.3d 436 asserting that he has found no cognizable issue
on appeal. Counsel therefore asked this court to conduct an independent
review of the record to determine whether any such issue exists.
All statutory citations herein are to the Penal Code unless otherwise
1
indicated.
1
Defendant thereafter filed supplemental briefs in which he raises a
claim of ineffective assistance of counsel that he wishes to bring to the court’s
attention. Defendant argues his appointed counsel effectively abandoned his
appeal by failing to raise an argument based on evidence in the record that
he acted without malice or intent to kill when fatally shooting his wife.
Defendant therefore asks this court to appoint him new counsel to pursue
this theory on appeal.
For reasons explained post, we conclude defendant has no right to the
Wende review process because this appeal is not his first appeal as of right.
Nonetheless, we have exercised our discretion to review the record for
reasonably arguable issues and have found none. We have also considered
the issues raised in defendant’s supplemental briefs and find them
unmeritorious. Accordingly, we affirm the lower court’s order and deny
defendant’s request for appointment of new counsel.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992, defendant was convicted of second degree murder after
pleading no contest. He received a sentence of 15 years to life in prison. The
abstract of judgment indicates that before pleading no contest to second
degree murder, defendant pleaded not guilty to murder by reason of insanity.
On May 13, 2021, defendant, representing himself, filed this petition
for recall of sentence and resentencing under section 1170.95. In his petition,
defendant attested that he was convicted of second degree murder under the
natural and probable consequences doctrine or the felony murder doctrine
and could not now be convicted of murder because of the changes to section
188 that became effective January 1, 2019. Defendant did not check the box
on the petition to indicate that he was not the actual killer. A preliminary
hearing transcript attached to the petition contained eyewitness testimony
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that defendant pursued his wife into a neighbor’s house during an argument.
Defendant then shot her from behind with his rifle at a distance of one to two
feet. After his wife fell to the floor, defendant continued to shoot her. She
died of multiple gunshot wounds.
Attached as exhibits to the petition are several mental health reports.
In particular, a 1990 psychiatric evaluation concluded defendant was
suffering from acute paranoid schizophrenia and acute disorganization with
disassociation at the time of the homicide. As a result, “he did not intend to
kill his wife or for that matter anyone else at the time that the homicide
occurred.”
On June 14, 2021, the trial court summarily denied the petition
without appointing counsel to represent defendant. The court reasoned that
defendant, as his wife’s actual killer, was ineligible for relief. On July 26,
2021, defendant timely appealed the court’s order.
DISCUSSION
As mentioned, appointed counsel has identified no issue for review.
Appointed counsel acknowledged in his brief that several courts have held
Wende review is constitutionally required only from a defendant’s first appeal
from a criminal conviction. Under this case law, Wende review is not
required from defendant’s present appeal because it from a postconviction
order denying sentencing relief. (People v. Cole (2020) 52 Cal.App.5th 1023,
1028, review granted October 14, 2020, S264278 [Wende does not apply to
appeals from the denial of postconviction relief]; People v. Freeman (2021) 61
Cal.App.5th 126, 133, review den. May 12, 2021, S268011 [Wende procedures
inapplicable to appeal from an order revoking postrelease community
supervision, as such an appeal is not a direct appeal from a judgment of
conviction]; People v. Flores (2020) 54 Cal.App.5th 266, 273 (Flores) [no right
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to Wende review in an appeal from postconviction denial of petition for
resentencing under § 1170.95].) Accordingly, defendant’s appeal is subject to
dismissal. (Cole, supra, 52 Cal.App.5th at p. 1028, rev.gr.)
This case law recognizes, however, that an appellate court nonetheless
has discretion to conduct a Wende review in an appeal from a postconviction
order. (See Flores, supra, 54 Cal.App.5th at p. 273 [“[while] we are not
required to conduct an independent review of the record because this is not
defendant’s first appeal as a matter of right—we have found no legal
authority that prohibits us from doing so in the interests of justice”].) Having
exercised this discretion, we now conclude the trial court correctly denied
defendant’s petition.
A person convicted of murder under a felony murder or natural and
probable consequences theory may petition to have the murder conviction
vacated. (§ 1170.95, subd. (a).) The petitioner’s prima facie case consists of
three mandatory elements: “(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 murder . . .
following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could have been convicted of murder . . . . [¶] (3) The petitioner
could not presently be convicted of murder . . . because of changes to Section
188 or 189 made effective January 1, 2019.”2 (§ 1170.95, subd. (a).)
Relevant here, the amended version of section 188 that became
effective January 1, 2019, provides: “Except as stated in subdivision (e) of
2 Section 1170.95 was amended effective January 1, 2022. (Stats. 2021,
ch. 551, § 2.) These statutory amendments are not relevant to any issue
raised herein.
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Section 189, in order to be convicted of murder, a principal in a crime shall
act with malice aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Newly
added section 189, subdivision (e), in turn, provides: “ ‘A participant in the
perpetration or attempted perpetration of a felony listed in subdivision (a) in
which a death occurs is liable for murder only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the
actual killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person 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.’ ” (People v. Perez
(2020) 54 Cal.App.5th 896, 902, italics added, review granted Dec. 9, 2020,
S265254 (Perez).)
In assessing whether a petitioner made a prima facie showing of
entitlement to relief under section 1170.95, “the court may consider the
petitioner’s record of conviction to determine ‘ “readily ascertainable facts.” ’ ”
(Perez, supra, 54 Cal.App.5th at pp. 904–905, rev.gr., quoting § 1170.95, subd.
(c).) We review the trial court’s ruling de novo. (People v. Davenport (2021)
71 Cal.App.5th 476, 481.)
Here, defendant acknowledged in his petition that he actually killed his
wife. Nothing in the record suggests otherwise. The information charged
defendant with murder with a personal firearm use clause. The evidence
adduced at the preliminary hearing—eyewitness testimony—established that
defendant killed his wife by repeatedly shooting her from behind with a rifle.
However, defendant claimed—as he does here—that he could not have acted
with malice aforethought because he was mentally incapacitated at the time.
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Defendant ultimately pleaded no contest to second degree murder. On this
record, the trial court correctly found defendant was not eligible for relief
under section 1170.95 because he was the actual killer and not merely a
participant. (See Perez, supra, 54 Cal.App.5th at p. 907, rev.gr. [Perez failed
to make a prima facie showing of entitlement to relief under § 1170.95 where
the evidence adduced at the preliminary hearing established that he pleaded
no contest to the murder based on a theory he was the actual killer]; People v.
Garrison (2021) 73 Cal.App.5th 735, 744 [“as the actual killer, Garrison is
ineligible for resentencing under section 1170.95”].)
Defendant’s argument in supplemental briefing that his counsel
rendered ineffective assistance fails under the same reasoning. Defendant
claimed his counsel effectively abandoned him by not raising an argument in
his opening brief regarding the evidence in the record that he did not
intentionally kill his wife or act with malice due to his mental incapacity. On
the contrary, appellate counsel appropriately counseled that defendant, as
the actual killer, is not eligible for relief under section 1170.95. As such, we
find no indication appellate counsel failed to meet his professional
responsibilities in this matter.
Accordingly, we deny defendant’s request for appointment of new
counsel and affirm the lower court’s order.
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing
under section 1170.95 is affirmed.
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_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Needham, J.
_________________________
Burns, J.
A163154/People v. Phillip Morris
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