People v. Curry CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCN099590
- Trial judge
- Runston G. Maino
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Julia C. Kelety
Analysis
The trial court denied Curry's petition for resentencing under Penal Code section 1172.6, finding him ineligible for relief as a matter of law based on the record of conviction. The Court of Appeal affirmed the denial after an independent review of the record pursuant to People v. Delgadillo.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.6“The court found the record of conviction established Curry was the actual killer who acted with malice. ... Based on the record of conviction, the court found Curry was not eligible for relief as a matter of law.” | de novo | correct | agree with court The appellate court affirmed the trial court's determination that Curry was ineligible for relief as a matter of law. The court relied on the record of conviction, which established Curry was the actual killer who acted with malice and that the jury was not instructed on felony murder or natural and probable consequences. Under section 1172.6, a petitioner who is the actual killer and acted with malice is not eligible for resentencing, and the trial court correctly applied this standard to the record. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Appellate counsel must file a brief identifying any arguable issues for reversal and request the court to independently review the record if no issues are found.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate courts must independently review the record for error when appointed counsel files a Wende brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed appellate counsel must file a brief identifying any arguable issues for reversal and request the court to independently review the record if no issues are found.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Delgadillo framework for independent review when counsel identifies no arguable issues. The court's conclusion that Curry was ineligible for relief as a matter of law is supported by the record of conviction showing he was the actual killer who acted with malice, which is a dispositive factor under section 1172.6.
The trial court denied Marcus Curry's Penal Code section 1172.6 resentencing petition at the prima facie stage, finding the record of conviction showed he was the actual killer who acted with malice and that the jury was never instructed on felony murder or natural and probable consequences; it also denied his motion for discovery and to vacate the conviction. On appeal, counsel filed a Delgadillo no-issue brief, Curry filed pro per briefs attacking only his 2001 trial, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1172.6 petition at the prima facie stage without issuing an order to show cause, on the ground that the record of conviction established Curry was the actual killer who acted with malice and the jury was not instructed on any imputed-malice theory“The court found the record of conviction established Curry was the actual killer who acted with malice. The court noted the jury was not instructed on felony murder or natural and probable consequences.” | unclear | correct | agree with court Where the jury was instructed only on malice-based murder theories and found the defendant personally discharged a firearm causing death, the record of conviction shows as a matter of law that he could still be convicted under current law, so denial at the prima facie stage is proper under section 1172.6, subdivision (c). The opinion does not articulate a standard of review or cite People v. Lewis, but the result follows from the facts recited and nothing in the opinion suggests improper factfinding. |
Denial of Curry's motion for discovery of exculpatory evidence and to vacate his conviction, raised alongside the section 1172.6 petition“The court also denied Curry’s motion for discovery of exculpatory evidence and to vacate his conviction.” | unclear | not reached | agree with court The Court of Appeal did not separately analyze this ruling but held that constitutional challenges to the underlying 2001 conviction fall outside the scope of a section 1172.6 appeal, which is consistent with the limited nature of that procedure. Curry's pro per materials concerned only the original trial and alleged withheld evidence, which cannot be litigated through a resentencing petition. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Procedure when appointed counsel finds no arguable issues on appeal from denial of a section 1172.6 petition; court may, in its discretion, independently review the record after the defendant is notified and given the opportunity to file a supplemental brief
- relied: People v. Wende (1979) 25 Cal.3d 436 — Independent appellate review of the record when appointed counsel identifies no arguable issues on a first appeal of right
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues should identify anything in the record that might arguably support the appeal
- missed: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage of a section 1172.6 petition the court may consult the record of conviction, including jury instructions, but may not engage in factfinding or weigh evidence; the petition may be denied only if the record establishes ineligibility as a matter of law
The appellate opinion: sound with gaps — The opinion correctly follows Delgadillo procedure, notifies the defendant, independently reviews the record, and reaches a result that is compelled where the jury was instructed only on malice theories and found personal discharge of a firearm causing death. It does not, however, cite Lewis or state the governing prima facie standard, and it does not separately address the denial of the discovery and vacatur motion beyond noting those matters are outside the appeal's scope.
How this analysis was made · dispute it
record incompleteOpinion
Filed 8/5/24 P. v. Curry CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083618
Plaintiff and Respondent, v. (Super. Ct. No. SCN099590)
MARCUS LYDELL CURRY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed. Marcus Lydell Curry, in pro. per.; and Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2001, a jury convicted Marcus Lydell Curry of second degree murder (Pen. Code,1 § 187, subd. (a)), and found Curry personally discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d)).
1 All statutory references are to the Penal Code unless otherwise specified. The court found true two strike priors (§ 667, subds. (b)-(i)). Curry was sentenced to a total term of 70 years to life. Curry appealed, and this court affirmed the judgment in an unpublished opinion. (People v. Curry (Dec. 4, 2003, D039844).) In 2023, Curry filed a petition for resentencing under section 1172.6. The court appointed counsel, received briefing, reviewed the record of conviction, held a hearing, and concluded Curry was ineligible for relief under section 1172.6. The court found the record of conviction established Curry was the actual killer who acted with malice. The court noted the jury was not instructed on felony murder or natural and probable consequences. Based on the record of conviction, the court found Curry was not eligible for relief as a matter of law. The court denied the petition for resentencing without first issuing an order to show cause or holding an evidentiary hearing. The court also denied Curry’s motion for discovery of exculpatory evidence and to vacate his conviction. Curry filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to exercise it discretion to independently review the record for error. We advised Curry of his right to file his own brief on appeal. He has filed a lengthy set of briefs and exhibits. None of the materials have anything to do with the trial court’s order, which is the subject of this appeal. Curry’s focus is on his complaint about the 2001 trial and his arguments that law enforcement withheld exculpatory materials. He apparently has some action pending is the federal court against the county. We make no comment regarding the potential merits, if any, of his challenges to his conviction.
2 The potential issues that may exist to challenge the conviction on constitutional grounds are not within the scope of this appeal. Accordingly, Curry has not presented any potentially meritorious grounds for reversal on appeal. DISCUSSION As we have noted, appellate counsel has filed a Delgadillo brief and asks the court to independently review the record for error in the same way we would do if this case was controlled by People v. Wende (1979) 25 Cal.3d 436. To assist the court in its review of the record, and in compliance with Anders v. California (1967) 386 U.S. 738, counsel has identified a possible issue that was considered in evaluating the potential merits of this appeal: Whether the court erred in finding Curry was ineligible for relief as a matter of law. We have independently reviewed the record for this appeal. We have not discovered any potentially meritorious issues for reversal on appeal. Competent counsel has represented Curry on this appeal.
3 DISPOSITION The order denying Curry’s petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
KELETY, J.
Cites, in this corpus
- People v. Delgadillo S266305 · 2022-12-19
- People v. Wende Crim. 20851 · 1979-10-12