People v. Smart CA3

Filed 8/14/23 P. v. Smart CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C097870
Plaintiff and Respondent, (Super. Ct. No. 04F03478)
v.
JARVELL DEANDRE SMART,
Defendant and Appellant.
A jury found defendant Jarvell Deandre Smart and a codefendant guilty of two
counts of assault with a firearm and one count of shooting at an occupied vehicle. The
jury found the crimes were committed for the benefit of a criminal street gang and that
the codefendant personally used a firearm and personally inflicted great bodily injury but
that defendant did not. The jury further found that a principal in the offense of shooting
at an occupied vehicle, the codefendant, personally and intentionally discharged a firearm
and caused great bodily injury to both victims. The trial court sentenced defendant to two
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25-year-to-life terms on the Penal Code1 section 12022.53 enhancements plus a
consecutive term of three years on the shooting at an occupied vehicle count. On direct
appeal, this court ordered one of the section 12022.53 enhancements stricken, resulting in
a modified sentence of 25 years to life plus three years. (People v. Smart (2006)
145 Cal.App.4th 1216, 1227.)
In 2022, defendant filed a petition for resentencing under section 1172.6.2 The
trial court denied the petition, concluding defendant failed to make a prima facie showing
of entitlement to relief. Appellate counsel filed a brief raising no arguable issues under
People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436,
and requesting we exercise our discretion to review the record for arguable issues on
appeal. Defendant filed a supplemental brief.
Because the record indicates defendant is not eligible for relief under section
1172.6, we will affirm the trial court’s order denying the petition for resentencing.
DISCUSSION
In his supplemental brief, defendant asserts he qualifies for relief under section
1172.6 because he was not the shooter, had no intention to participate in a crime, and did
not know a crime was going to take place.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, §§ 1-4) was
enacted “to amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with the intent to kill, or was not a major
1 Further undesignated statutory references are to the Penal Code.
2 Defendant petitioned for resentencing under former section 1170.95. Effective
June 30, 2022, the Legislature renumbered former section 1170.95 as section 1172.6
without substantive changes. (Stats. 2022, ch. 58, § 10.) We will refer to the current
section 1172.6 throughout this opinion.
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participant in the underlying felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 achieved this by amending
sections 188 and 189. (Stats. 2018, ch. 1015, §§ 1-2.) In addition, Senate Bill No. 1437
created a mechanism for individuals convicted of qualifying offenses to petition for
resentencing. Section 1172.6, subdivision (a) now provides: “A person convicted of
felony murder or murder under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural and probable consequences
doctrine, or manslaughter may file a petition with the court that sentenced the petitioner
to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts when all of the following conditions
apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder, murder under
the natural and probable consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in a crime, or attempted
murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was
convicted of murder, attempted murder, or manslaughter following a trial or accepted a
plea offer in lieu of a trial at which the petitioner could have been convicted of murder or
attempted murder. [¶] (3) The petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made effective January 1,
2019.”
Defendant did not sustain a conviction that would qualify him for relief under
section 1172.6. The plain, unambiguous language of section 1172.6 establishes it applies
only to convictions of murder, attempted murder, and manslaughter. (See generally
People v. Lucero (2019) 41 Cal.App.5th 370, 394-395 [discussing canons of statutory
construction].) Defendant was convicted of assault with a firearm and shooting at an
occupied vehicle. Section 1172.6 does not authorize resentencing for these convictions.
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Defendant also asserts in his supplemental brief that had he been convicted of
murder, attempted murder, or manslaughter, he would be eligible for relief, and it would
be unfair to deny him relief because he stands convicted of the less culpable offenses of
assault with a firearm and shooting at an occupied vehicle. As best we can discern,
defendant’s contention appears to be that section 1172.6 violates equal protection
principles in that it treats similarly situated people in different ways. (See generally
People v. Chatman (2018) 4 Cal.5th 277, 289 [in performing equal protection analysis,
we first ask whether a classification affects similarly situated groups in an unequal
manner].) However, defendant is not similarly situated to individuals eligible for relief
under section 1172.6, as he was not convicted of any of the crimes addressed in the
statute. (People v. Morales (2019) 33 Cal.App.5th 800, 808 [“Generally, offenders who
commit different crimes are not similarly situated” for equal protection purposes].) In
any event, the choice to include only murder, attempted murder, and manslaughter in
section 1172.6 falls “within the Legislature’s ‘line-drawing’ authority as a rational choice
that is not constitutionally prohibited.” (People v. Cervantes (2020) 44 Cal.App.5th 884,
888.) Moreover, we note that, while in passing Senate Bill No. 775 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 551, § 2) the Legislature amended what is now section 1172.6 to
permit defendants convicted of attempted murder and manslaughter to seek the same
relief afforded to those convicted of murder, the Legislature declined to extend the reach
of section 1172.6 to defendants convicted of crimes other than murder, attempted murder,
and manslaughter. Lastly, to the extent defendant’s contention that section 1172.6
operates unfairly is not based on equal protection, he has not articulated or established
any other basis for relief.
A reviewing court need not engage in a full Wende review on a challenge to an
order denying postconviction relief under section 1172.6. (People v. Delgadillo, supra,
14 Cal.5th at pp. 221-222.) Where, as here, a defendant has filed a supplemental brief,
the reviewing court need only evaluate the specific arguments raised in the brief. (Id. at
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p. 232.) “The filing of a supplemental brief or letter does not compel an independent
review of the entire record to identify unraised issues.” (Ibid.) Having addressed the
specific contentions raised in defendant’s supplemental brief, our review is complete.
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing is affirmed.
/s/
ROBIE, Acting P. J.
We concur:
/s/
RENNER, J.
/s/
KRAUSE, J.
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