People v. Duffey CA4/3

Filed 6/16/23 P. v. Duffey CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061652
v. (Super. Ct. No. 06NF2865)
NEIL DEONTRAI DUFFEY, OPI NION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Jonathan Fish, Judge. Affirmed.
Christine Vento, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance by Plaintiff and Respondent.
* * *
Defendant Neil Deontrai Duffey appeals from an order denying his petition
for resentencing made pursuant to formal Penal Code section 1170.95 (now Pen. Code,
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§ 1172.6). His appointed counsel filed a brief pursuant to People v. Delgadillo (2022)
14 Cal.5th 216 to inform the court that counsel had found no arguable issues and to
request that we exercise our discretion to conduct an independent review of the record.
Counsel also suggested one issue for our consideration. Defendant was given the
opportunity to file a supplemental brief on his own behalf and was given notice pursuant
to People v. Delgadillo that if no supplemental brief was filed, the court might dismiss
the appeal as abandoned.
Defendant did not file a supplemental brief. We nonetheless exercise our
discretion to conduct an independent review of the record . (People v. Delgadillo, supra,
14 Cal.5th at p. 232.) We have conducted our independent review, find no arguable
issues on appeal, and conclude the issue suggested by counsel does not have merit.
Accordingly, we affirm the postjudgment order.
FACTS
A jury convicted defendant of two counts of attempted premeditated
murder (§§ 664, subd. (a), 187, subd. (a); counts 2 & 3) and two counts of second degree
robbery (§§ 212, 212.5, subd. (c); counts 4 & 5). As to both attempted murder counts,
the jury found to be true the allegations that defendant willfully, deliberately, and with
premeditation committed the offense of attempted murder. As to all counts, the jury
found to be true that defendant used a firearm (§ 12022.53, subd. (b)), personally and
intentionally discharged a firearm (§ 12022.53, subd. (c)), personally discharged a
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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 shall use the
current Penal Code section number throughout our opinion.
All statutory references are to the Penal Code.
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firearm causing great bodily injury (§ 12022.53, subd. (d)), and personally inflicted great
bodily injury (§ 12022.7, subd. (a)).
The trial court sentenced defendant to two consecutive terms of seven years
to life for each of the premeditated attempted murder counts and two consecutive terms
of 25 years to life for each of the gun enhancements. (§ 12022.5, subd. (d).) Execution
of sentence under the two robbery counts, the great bodily injury enhancements, and the
remaining firearm enhancements was stayed pursuant to section 654.
PETITION FOR RESENTENCING
In January 2022, defendant filed a petition for resentencing pursuant to
section 1172.6. He alleged: (1) the information against him allowed the prosecution to
proceed under a theory of felony attempted murder, attempted murder under the natural
and probable consequences doctrine, or another theory of imputed malice; (2) he was
convicted of attempted murder following a trial; and (3) he could not presently be
convicted of attempted murder due to changes made to section 188 and 189. Defendant
was appointed counsel.
The district attorney filed a response to the petition for resentencing. The
district attorney argued that although the jury had been instructed on the natural and
probable consequences doctrine, that instruction had been modified so that it applied only
to a codefendant. In addition, the district attorney argued the jury found defendant
“willfully, deliberately and with premeditation” committed the crime of attempted
murder, personally used a firearm during the commission of attempted murder,
personally discharged a firearm during the commission of attempted murder, and the
discharge of the firearm caused great bodily injury. The district attorney submitted
exhibits, including the jury instructions, which showed the natural and probable
consequences instruction applied only to the codefendant.
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Defendant’s counsel filed a reply in support of the petition for resentencing.
Counsel argued the petition for resentencing made a prima facie case for relief under
section 1172.6 and requested the court to conduct a hearing in order to make that
determination.
On July 29, 2022, the trial court conducted a hearing pursuant to section
1172.6, subdivision (c) to determine whether defendant had made a prima facie case for
relief. After hearing argument from counsel, the court denied the petition for
resentencing without issuing an order to show cause and placed its reasons for doing so
on the record. In compliance with section 1172.6, subdivision (c), the court also issued a
written statement setting forth its reasons. The statement reads: “The court has reviewed
the motions and the exhibits submitted: the petition, the Information, the court minutes,
the appellate opinion filed June 14, 2010 in the Superior Court (G044032), two Abstracts
of Judgment, the jury verdict forms and the trial jury instructions. The court relies
specifically and solely upon the jury instructions and verdict forms as they relate to the
substantive count. [¶] There has been no showing of a prima facie case that [defendant]
was convicted under any now-void legal theory of Attempted Murder as described in
section [1172.6]. [¶] Relating to the two counts of Attempted Murder, the jury was
instructed generally on aiding and abetting (‘Cal Crim’ 400-[4]01) and the elements of
attempted murder (‘Cal Crim’ 600). As it relates to [defendants]’s codefendant, . . . the
jury was instructed on Aiding and Abetting with the Natural and Probable Consequences
relating to the target and non-target offenses (‘Cal Crim’ 402). The only theories of guilt
instructed upon, as it relates to [defendant], required the finding of a ‘specific intent to
kill.’ Therefore, he was convicted under a still-viable definition of Attempted Murder.”
ISSUE SUGGESTED BY COUNSEL
We have examined the entire appellate record and have found no arguable
issues on appeal. Defendant’s counsel suggests we address the following issue: “Did the
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court err in denying the petition at the prima facie stage and were the proper procedures
followed?” Our review of the record confirms the correct procedures under section
1172.6 were followed and the trial court did not err by finding defendant had not made a
prima facie case for relief.
DISPOSITION
The postjudgment order is affirmed.
SANCHEZ, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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