People v. Pamphile CA2/2

Filed 5/11/23 P. v. Pamphile 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B322919
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA054680)
v.
YAHVAH PAMPHILE,
Defendant and Appellant.
THE COURT:
Yahvah Pamphile (defendant) appeals the order of the
superior court summarily denying his petition for resentencing
under Penal Code1 section 1172.6 (former section 1170.95).2 We
1 All further statutory references are to the Penal Code
unless otherwise indicated.
appointed counsel to represent defendant on appeal. After
examination of the record, counsel filed an opening brief raising
no issues and asking this court to independently review the
record. Our Supreme Court has established a procedural
framework to follow when appointed counsel finds no arguable
issues. (People v. Delgadillo (2022) 14 Cal.5th 216, 221-222
(Delgadillo).) Under that framework, we gave notice to defendant
that he had the right to file a supplemental letter or brief, or his
appeal could be dismissed. He filed a 32-page supplemental brief
raising several issues, so we have issued an opinion evaluating
his arguments. (See id. at p. 232.)
Finding no arguable error that would result in a disposition
more favorable to defendant, we affirm.
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BACKGROUND
While two members of street gangs got into a fistfight
outside of a bar in Lancaster, California, defendant walked up to
another onlooker, pulled out a gun, and shot him in the back of
the head.
Defendant was convicted by jury of first degree murder (§
187, subd. (a)). The jury also found true the allegations that
defendant personally discharged a firearm causing death (§
12022.53, subd. (d)), and that the crime was committed for the
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
For the sake of simplicity, we will refer to the section by its new
numbering only.
3 We granted defendant’s request to take judicial notice of
this court’s unpublished decision in defendant’s direct appeal
from his conviction (People v. Pamphile (Dec. 22, 2014, B248604)
[nonpub. opn.]).
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benefit of a criminal street gang (§ 186.22, subd. (b)(4)).
Defendant admitted he had previously suffered a prior serious or
violent felony, or “strike” (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)).
The trial court sentenced defendant to a state prison term
of 90 years to life, comprised of 50 years to life for the murder
(that is, a base sentence of 25 years to life doubled due to the
prior strike), plus 25 years to life for the firearm enhancement,
plus 15 years to life for the gang enhancement.
Defendant appealed his conviction, arguing that (1) the
trial court erred in denying his motion for a new trial due to the
insufficiency of the evidence and to the discovery of new material
evidence, and (2) the gang enhancement was improperly imposed.
We rejected his first contention, but struck the 15-year gang
enhancement because we concluded the 15-year minimum parole
eligibility term of section 186.22, subdivision (b)(5) applied
instead. In all other respects, we affirmed the judgment as
modified.
On June 7, 2022, defendant filed, in propria persona, a
petition for resentencing pursuant to section 1172.6.
On June 29, 2022, the trial court summarily denied the
petition for resentencing, stating, in pertinent part, “[t]he
evidence at trial showed that the prosecution’s theory of the case
was that [defendant] was the actual shooter and that the
[defendant] intended to kill the Victim. [¶] Therefore, the
defendant has failed to make a prima facie case for relief and the
Petition . . . is denied.”
Defendant filed a timely notice of appeal from the order.
After his appointed counsel filed a letter raising no issues,
defendant filed his supplemental brief.
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DISCUSSION
Under the Delgadillo procedures that apply when a
defendant files a supplemental brief, our task is a limited one:
We need not conduct an independent review of the entire record
for unraised issues; instead, we need only “evaluate the specific
arguments presented in that brief and to issue a written opinion.”
(Delgadillo, supra, 14 Cal.5th at p. 232.)
Defendant presents three categories of arguments in his
supplemental brief—namely, that (1) the evidence adduced at his
trial was insufficient to convict him of murder; (2) his appointed
counsel in this appeal was ineffective for not raising that issue;
and (3) the criminal street gang enhancement must be reversed
because of changes made to section 186.22 by the enactment of
Assembly Bill No. 333 (2021-2022 Reg. Sess.).
These arguments all lack merit.
As a threshold matter, this is an appeal from the denial of a
motion for relief under section 1172.6. That section provides a
post-conviction mechanism for vacating a murder conviction that
rests on any of the legal theories of liability that the Legislature
invalidated in Senate Bill No. 1437 (2017-2018 Reg. Sess.). It is
not a free-floating mechanism for relitigating the validity of any
murder conviction. (People v. Strong (2022) 13 Cal.5th 698, 713-
714; cf. People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 [relief
inmate sought under a petition to resentence under § 1170, subd.
(d), was not available under that statute and, therefore, trial
court had no jurisdiction to grant the relief and the order denying
such relief was not reviewable on appeal].) As a result, none of
defendant’s arguments are properly before us: His attack on the
sufficiency of the evidence at his trial seeks to relitigate the
validity of his conviction; his attorney in this appeal acted
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correctly in not raising this issue because it is outside the scope of
section 1172.6; and the new gang enhancement statute seeks
relief wholly separate from the relief available under section
1172.6 and is not, in any event, available to persons—like
defendant—whose convictions are long final. (People v. Salgado
(2022) 82 Cal.App.5th 376, 380.)
Further, the only issue properly presented in this appeal—
the correctness of the trial court’s denial of defendant’s section
1172.6 petition—was decided correctly. Section 1172.6 does not
provide relief for persons who were convicted as the actual killer.
(People v. Duran (2022) 84 Cal.App.5th 920, 927.) Because
defendant was convicted on precisely that still-valid theory, the
trial court properly denied his section 1172.6 petition as a matter
of law. As a result, the trial court’s summary denial without first
appointing counsel is harmless, and provides no basis for
disturbing the trial court’s ruling.
In conclusion, we are satisfied that defendant’s attorney
has fully complied with his responsibilities and that no arguable
issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441; People v.
Kelly (2006) 40 Cal.4th 106, 109-110.)
DISPOSITION
The order denying defendant’s petition for resentencing
pursuant to Penal Code section 1172.6 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
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ASHMANN-GERST, Acting P. J., CHAVEZ, J., HOFFSTADT, J.
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