People v. Wall CA2/4

Filed 5/2/23 P. v. Wall CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B320952
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. SA009175)
v.
DAVID WARREN WALL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Lauren Weis Birnstein, Judge. Affirmed.
Mark Yanis, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Defendant David Warren Wall appeals from the trial court’s order
denying his petition for resentencing under Penal Code section 1172.6. The
court denied the petition after appointing defendant counsel, receiving
briefing by the parties, and holding a hearing. Based in part on defendant’s
own trial testimony wherein he admitted to shooting and killing the victim,
the trial court denied the section 1172.6 petition and found defendant was
not entitled to resentencing as “the actual killer.” (See People v. Wall (Sept.
21, 1994, B076080) [nonpub. opn.], 5, 8 (Wall I) [defendant testified he had
kidnapped the victim, “grabbed his own gun and shot [the victim] twice”];
accord, People v. Delgadillo (2022) 14 Cal.5th 216, 233 (Delgadillo) [the
defendant was “not entitled to any relief under section 1172.6” because he
was “the actual killer and only participant in the killing”]; People v. Patton
(2023) 89 Cal.App.5th 649, 657 [same]; People v. Garrison (2021) 73
Cal.App.5th 735, 743–744 [same].)
Following his appointment by this court, appellate counsel found no
arguable issues and filed a brief under People v. Wende (1979) 25 Cal.3d 436(Wende), asking this court to independently review the record. On December
9, 2022, we informed defendant, his counsel, and the Attorney General of the
opening Wende brief. In our notice to the parties, we directed appointed
counsel to send the record and a copy of the opening brief to defendant, and
informed defendant he could submit a supplemental brief or letter within 30
days raising any contentions he wished this court to consider. He did not do
so.
Less than two weeks after we issued our notice to the parties, the
Supreme Court issued its decision in Delgadillo. There, the Court held the
Wende procedures, including the court’s duty to independently review the
appellate record, do not apply to an appeal from the denial of postconviction
relief under the resentencing procedures set forth in section 1172.6.
(Delgadillo, supra, 14 Cal.5th at p. 226.) “On an appeal from the denial of a
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section 1172.6 petition, we therefore prescribe the following framework.
When appointed counsel finds no arguable issues to be pursued on appeal:
(1) counsel should file a brief informing the court of that determination,
including a concise recitation of the facts bearing on the denial of the petition;
and (2) the court should send, with a copy of counsel’s brief, notice to the
defendant, informing the defendant of the right to file a supplemental letter
or brief and that if no letter or brief is filed within 30 days, the court may
dismiss the matter.” (Id. at pp. 231–232, italics added.) If the defendant
does not file a supplemental brief or letter, the Court of Appeal need not
conduct its own review of the record and may dismiss the appeal as
abandoned. (Id. at p. 232; see ibid. [“it is wholly within the court’s discretion
[to conduct] its own independent review of the record”].)
The notice provided to defendant in this case pre-dated the Court’s
decision in Delgadillo. While the notice informed defendant of his right to file
a supplemental brief, it did not warn him of the potential for dismissal should
he not file a supplemental brief or letter. On the contrary, the notice cited
Wende and the filing of an opening brief under that particular case. From
this form notice, defendant “reasonably could have concluded . . . that the
Wende procedures would apply and that [we] would conduct an independent
review of the record, even absent a supplemental brief.” (Delgadillo, supra,
14 Cal.5th at p. 233.)
Consistent with Delgadillo, we find the notice provided in this case to
be “suboptimal,” and in light of this conclusion, we have undertaken an
independent review of the entire appellate record under Wende. (Delgadillo,
supra, 14 Cal.5th at pp. 232–233.) Following our independent review, we
conclude defendant is not entitled to any relief under section 1172.6.
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Like Delgadillo, here the record “makes clear that [defendant] was the
actual killer and the only participant in the killing.” (Delgadillo, supra, 14
Cal.5th at p. 233.) As appointed counsel acknowledges, defendant never
disavowed being the actual killer in this case. Defendant only sought
resentencing because he believed his murder conviction was based on the
natural and probable consequence doctrine or the felony murder doctrine.
But defendant was never convicted under either theory. The jury never
received instructions on the natural and probable consequences doctrine.
And while it did receive instructions on felony murder, those instructions
were limited only to first degree murder. (§ 189, subd. (a); CALJIC No. 8.21
[“[t]he unlawful killing of a human being . . . which occurs during the
commission of the crime of kidnapping is murder of the first degree”].) The
jury found defendant guilty of second degree murder. Under the directions it
received on this theory of culpability, the jury found defendant killed the
victim with express malice (intent to kill) but without premeditation and
deliberation. (CALJIC No. 8.30; accord, CALJIC No. 8.11 [“Malice” limited to
manifesting “an intention unlawfully to kill a human being”].) Upon
unanimously finding defendant guilty of express malice murder, the jury also
found he personally used a firearm in the commission of that offense.
(CALJIC No. 17.19.)
Thus, the record establishes conclusively defendant’s guilt of second
degree murder under a still-valid theory of liability as the actual killer who
harbored an intent to kill the victim. We are satisfied defendant’s appointed
counsel fully complied with his responsibilities and no arguable issue exists,
and defendant has, by virtue of counsel’s compliance with Wende and our
review of the record, received adequate and effective appellate review of the
postconviction order. (Smith v. Robbins (2000) 528 U.S. 259, 278.)
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DISPOSITION
The order denying defendant’s postconviction petition for resentencing
under section 1172.6 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.*
We concur:
CURREY, Acting P. J.
COLLINS, J.
*
Judge of the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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