People v. Howard CA2/1

Filed 9/20/23 P. v. Howard CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B327529
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A650427)
v.
KEISHUN VERNILL HOWARD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Patrick Connolly, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
MEMORANDUM OPINION1
We summarize only those facts relevant to our disposition
of this appeal.
In 1989, a jury found defendant Keishun Vernill Howard
guilty of second degree murder under Penal Code2 section 187 for
the 1988 killing of Cardaos White and found true the allegation
under section 12022.5 that Howard personally used a firearm in
the commission of the crime. (People v. Howard (Dec. 24, 2020,
B303537) [nonpub. opn.] (Howard III).)3 The trial court
sentenced Howard to a prison term of 15 years to life, plus two
years in prison for the section 12022.5 enhancement.
(Howard III, supra, B303537.) On September 25, 1991, we
affirmed the judgment of conviction in an unpublished opinion.
(Id.)
On October 24, 2022, Howard filed a petition in pro per for
resentencing pursuant to section 1170.95, wherein he requested
appointment of counsel.4 He claimed to have been incarcerated
1 We resolve this case by memorandum opinion because it
“raise[s] no substantial issues of law or fact . . . .” (Cal. Stds. Jud.
Admin., § 8.1.)
2 Undesignated statutory citations are to the Penal Code.
3 We, sua sponte, take judicial notice of the procedural
history recounted in Howard III. (Evid. Code, §§ 452,
subd. (d), 459.)
4 On June 30, 2022, section 1170.95 was renumbered,
without substantive change, as section 1172.6. (See Stats. 2022,
ch. 58, §§ 10, 47 [Assembly Bill No. 200, which renumbered
§ 1170.95 as § 1172.6, and provided that the statute took effect
immediately on June 30, 2022]; People v. Delgadillo (2022)
2
since he was 16 and had no criminal record before the murder
conviction at issue here. Attached to Howard’s petition is a
“Witness Statement Declaration” on “Brown Investigations”
letterhead, which appears to indicate that in October 2020, a
witness to the crime told an investigator that: (a) Howard and an
“unknown male” who “was holding a black hand gun” were
“standing side by side” at the crime scene just before the
shooting; (b) the witness did not see “Howard with a gun during
the incident”; and (c) although the witness apparently did not see
who shot White, she did hear what “sounded like two guns . . .
shooting, approximately 15 shots” shortly before White was
injured. The declaration purports to be signed by a T.B. and
dated October 30, 2020.5 He also attached documents describing
his positive behavior and courses of study while in prison.
Without appointing counsel, on November 14, 2022, the
trial court summarily denied the petition. In its minute order,
the court stated Howard was “not entitled to relief as a matter of
law” because: “The appellate opinion affirming [Howard’s]
conviction and sentence reflects that [Howard] was the actual
killer and was convicted of murder on a theory of being the direct
perpetrator and not a theory of felony murder of any degree, or a
14 Cal.5th 216, 223, fn. 3 (Delgadillo) [noting that Assembly Bill
No. 200 renumbered former § 1170.95 to § 1172.6 without any
substantive change].) Accordingly, all subsequent references are
to section 1172.6.
5 T.B. is Howard’s alleged victim of the attempted murder
with malice aforethought count in the felony complaint and
information that also charged Howard with White’s murder. The
record does not reveal the resolution of the attempted murder
count.
3
theory of natural and probable consequences.”6 Howard timely
appealed the order denying his petition.7 The record does not
contain the jury instructions, verdict form, or any reporters’
transcripts.
On May 19, 2023, we appointed counsel for Howard. On
June 13, 2023, Howard’s appointed counsel filed a brief in which
counsel identified no issues and asked us to “follow the
procedures set forth in People v. Delgadillo (2022)
14 Cal.5th 216.” On July 26, 2023, Howard filed a supplemental
brief.8 Howard attached the aforesaid “Witness Statement
6 In its minute order, the trial court also rejected Howard’s
petition insofar as he sought habeas relief or a recall of his
sentence pursuant to section 1170, subdivision (d). Howard
does not cogently argue on appeal that he was entitled to habeas
relief or a recall of his sentence under section 1170,
subdivision (d). Accordingly, we do not address these aspects of
the minute order further. (See People v. Evans (2011)
200 Cal.App.4th 735, 756, fn. 12 (Evans) [declining to address an
argument that a party failed to support adequately].)
7 The appellate record is comprised of a 67-page clerk’s
transcript that contains only the felony complaint, the
information, a probation officer’s report, a minute order from
Howard’s sentencing hearing, Howard’s instant petition for
resentencing, a minute order assigning the petition to a
department of the trial court, the trial court’s order denying the
petition, Howard’s notice of appeal, and certificates from the trial
court clerk.
8 In his supplemental brief, Howard requests the
appointment of a new attorney on the ground that his current
appellate counsel is “ineffective.” Because Howard does not
support any such purported right to new counsel with case
4
Declaration” to his supplemental brief, and argues this document
shows that a “witness who[se] testimony in trial got [him] a
guilty verdict because she testified [that Howard] had a gun
and . . . was an active shooter as well . . . . finally [told] the
truth 30 plus years later [in a] signed declaration.”
As a general rule, when, as here, a defendant appeals from
the denial of postconviction relief and appointed counsel files a
brief raising no issues, we do not review the record independently
to determine whether there are any arguable issues on appeal.
(See Delgadillo, supra, 14 Cal.5th at pp. 224–226.)
The trial court summarily denied Howard’s section 1172.6
petition on the ground that our prior opinion affirming the
judgment demonstrated he was “not entitled to relief as a matter
of law . . . .” Our Supreme Court has held if a petitioner requests
appointment of counsel, then the trial court may “consider the
record of conviction to determine whether ‘the petitioner makes a
prima facie showing that he or she is entitled to relief[,]’
[citation],” “only after the appointment of counsel and the
opportunity for briefing . . . .” (See People v. Lewis (2021)
11 Cal.5th 952, 957, 962, 968 (Lewis).) Howard requested
appointment of counsel; the trial court summarily denied his
petition without appointment of counsel and briefing. In doing
so, the trial court erred.9
authority or cogent argument, we do not address his contention
further. (See Evans, supra, 200 Cal.App.4th at p. 756, fn. 12.)
9 Although Lewis recognized that a trial court may
summarily deny certain “noncomplying petition[s] ‘without
prejudice[,]’ [citation],” (see Lewis, supra, 11 Cal.5th at p. 962),
the trial court did not purport to exercise that authority here.
5
The question is whether this error was prejudicial under
the state law standard of prejudice in People v. Watson (1956)
46 Cal.2d 818 (Watson). (See Lewis, supra, 11 Cal.5th at pp. 973–
974.) Under that standard, “a petitioner ‘whose petition is denied
before an order to show cause issues has the burden of showing
“it is reasonably probable that if [he or she] had been afforded
assistance of counsel his [or her] petition would not have been
summarily denied without an evidentiary hearing.” ’ [Citation.]”
(Lewis, at p. 974.) Howard fails to make this showing.
In his supplemental brief, Howard does not argue he was
convicted of second degree murder under a “theory under which
malice is imputed to a person based solely on that person’s
participation in a crime,” which is an essential element of a
successful section 1172.6 petition. (See § 1172.6, subd. (a); see
id., subd. (b)(1)(A) [indicating that “all the requirements of
subdivision (a)” must be shown to establish “that the petitioner is
eligible for relief under this section”].) He does not contend the
prosecution argued an invalid murder theory at trial, or that the
trial court’s instructions or verdict form allowed the jury to
convict him under such a theory. The felony complaint and
criminal information charged Howard only with the malice
aforethought murder of White and does not allege anyone else
participated in White’s killing or any underlying other felony
committed in connection with White’s killing. Instead, it seems
Howard is contending the “Witness Statement Declaration”
shows the jury erroneously found he was the person who shot
White. Similarly, Howard asserts in his petition that he “was
wrongfully convicted,” and that he was arrested and charged with
the murder “just because” he was “at the scene of the crime” and
“the police never got the actual [ ]shooter.” Because Howard fails
6
to establish that the trial court’s summary denial of his petition
without first appointing counsel and allowing the parties to brief
the petition was prejudicial, we affirm the trial court’s order
denying his resentencing petition.
DISPOSITION
The trial court’s November 14, 2022 order denying
defendant Keishun Vernill Howard’s petition for resentencing is
affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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