People v. Andrews CA4/2

Filed 8/8/23 P. v. Andrews CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E080265
v. (Super.Ct.No. FVA1100588)
DALRAY KWANE ANDREWS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Dismissed.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
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Defendant and appellant Dalray Kwane Andrews1 appeals from the order of the
San Bernardino County Superior Court denying his section 1172.62 petition for
resentencing.
BACKGROUND
In April 2011, Joshua Huizar was waiting in a fast-food drive through when
defendant approached him and demanded money. When Mr. Huizar attempted to drive
away, defendant shot and killed him.
In 2012, a jury convicted defendant of first degree murder (§ 187), attempted
robbery (§§ 211, 664), and assault with a semiautomatic firearm (§ 245, subd. (b)). The
jury also found true allegations that defendant personally used a firearm in the
commission of each of the offenses. We affirmed the convictions on appeal. (People v.
Andrews (Feb. 10, 2014, E057913) [nonpub. opn.] (Andrews I.).)
In January 2022, defendant filed a section 1172.6 petition for resentencing. The
People opposed the petition on the grounds that defendant was the actual killer and
personally used a firearm in the commission of the killing and requested judicial notice of
the sentencing report, our opinion in Andrews I., and the trial court’s files and records.
Defendant argued his petition established on its face his entitlement to relief and,
1 Defendant’s name is spelled different ways within the record. We will use the
spelling from the Abstract of Judgment.
2 Section 1170.95 was renumbered as section 1172.6 without change in the text,
effective June 30, 2022 (Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to
the provision by its new numbering. All further statutory references are to the Penal
Code.
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therefore, the court should not make a decision about the credibility of his allegations
without first holding an evidentiary hearing.
At the November 2022 prima facie hearing on the petition, the court stated it had
reviewed the trial briefs, our opinion in Andrews I., and defendant’s conviction and found
defendant was the actual killer of the victim and personally used a firearm to commit that
offense. Defendant timely noticed this appeal and we appointed counsel to represent
him.
DISCUSSION
Appointed appellate counsel filed an opening brief that sets forth statements of the
case and facts but does not present any issues for adjudication. Counsel requests we
exercise our discretion under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) to
conduct an independent review of the record and suggests we have plenary discretion to
address the following questions: (i) whether the trial court erred by relying on the facts
stated in the prior appellate opinion; (ii) whether the trial court erred by relying on the
facts stated in the probation report; (iii) whether any error was prejudicial in light of the
factual circumstances, the parties’ closing arguments at trial, the jury instructions, and
verdicts, which are all part of the court file and records.
We notified defendant that his counsel had filed a brief stating no arguable issues
could be found and that this court may, but is not required, to conduct an independent
review of the record. (Delgadillo, supra, 14 Cal.5th 216 at pp. 231-232.) We invited him
to file any arguments he deemed necessary and cautioned that failure to timely file a
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supplemental brief might result in the dismissal of his appeal as abandoned. Defendant
did not file a brief.
Neither defendant nor his counsel have presented an issue and upon our review of
the record, we do not find any error. Accordingly, we dismiss defendant’s appeal.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.
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