People v. Carter CA3

Opinion

Filed 8/26/26 P. v. Carter CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C102845 Plaintiff and Respondent, (Super. Ct. No. 96F01462) v. DESTINY CARTER, Defendant and Appellant.

Defendant Destiny Carter appeals from a postconviction order denying his resentencing petition under Penal Code1 section 1172.6.2 Appellate counsel filed a brief raising no arguable issues under People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and asking this court to conduct an independent review of the record. Defendant filed a supplemental brief. We affirm. FACTUAL AND PROCEDURAL BACKGROUND On February 15, 1996, defendant got in a truck that did not belong to him and began to drive away. As he drove away, the truck’s owner (the victim) held on to the 1 Undesignated section references are to the Penal Code. 2 Defendant referenced section 1170.95 in his resentencing petition, however effective June 30, 2022, former section 1170.95 was recodified without substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) We refer to the current section 1172.6 throughout this opinion.

1 back of the truck. He yelled out to defendant to stop the truck. Defendant did not stop. Instead, defendant “deliberately swerve[d] or fishtail[ed] the truck in an effort to shake . . . off” the victim. As a result, the victim was “flung off” the truck and “into the side of a parked” car. The victim died from the resulting injuries. The prosecution charged defendant with first degree murder committed during a robbery, robbery, and carjacking. On September 13, 1996, defendant pled guilty to first degree murder and admitted to violating his probation in two other cases, which are not subject to this appeal. The trial court sentenced defendant to a stipulated term of 25 years to life, plus three years eight months to be served consecutively to the indeterminate term. Defendant did not appeal. On August 8, 2022, defendant filed a section 1172.6 resentencing petition. The trial court appointed counsel, the prosecution conceded defendant made a prima facie case for relief, and the trial court issued an order to show cause. In its opposition to defendant’s petition, the prosecution relied on the preliminary examination transcript as well as defendant’s video-taped confession. In his confession, defendant admitted to knowing a man was hanging on to the back of the truck. He also admitted to intentionally swerving in an effort to throw that man off and seeing the man lying on the ground. Over defendant’s objection, the trial court considered that evidence and found defendant could still be convicted of murder. The court explained defendant was the actual killer and knew the victim was hanging on to the back of the truck. The court denied the petition accordingly. Defendant appeals. DISCUSSION Appellate counsel asks this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (Delgadillo, supra, 14 Cal.5th at pp. 231-232; People v. Wende, supra, 25 Cal.3d 436.) Defendant was 2 advised by counsel and this court of his right to file a supplemental brief within 30 days from the date the opening brief was filed. Defendant filed two requests for an extension of time, which we granted, totaling 120 days. He filed a supplemental brief on July 15, 2026. In Wende, our Supreme Court held that “Courts of Appeal must conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal [that] raises no specific issues or describes the appeal as frivolous.” (Delgadillo, supra, 14 Cal.5th at p. 221.) The Wende procedure applies “to the first appeal as of right and is compelled by the constitutional right to counsel under the Fourteenth Amendment of the United States Constitution.” (Delgadillo, at p. 221.) In Delgadillo, our Supreme Court considered whether the Wende process applies to a trial court’s order denying a petition for postconviction relief under section 1172.6 and concluded it is not required. (Delgadillo, supra, 14 Cal.5th at pp. 221-222.) The Supreme Court laid out applicable procedures for such cases, explaining that when a defendant files a supplemental brief, “the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.” (Id. at pp. 231- 232.) But the filing of a supplemental brief does not compel the court to independently review the entire record to identify unraised issues, though it may exercise its discretion to do so. (Id. at p. 232.) We decline to conduct an independent review of the record. In his supplemental brief, defendant says he would not have taken the truck if he had seen “some one [sic]— anyone coming out of the residence.” He also says he knows what he did was wrong, but he should have gone to trial. It is apparent defendant regrets entering into a plea agreement but that is not a legal argument related to the trial court’s denial of his section 1172.6 petition. Indeed, what defendant does not challenge is the trial court’s finding that he was the actual killer, which is the reason the trial court denied his 3 section 1172.6 petition. Defendant’s supplemental brief does not establish the trial court erred by denying his section 1172.6 petition. DISPOSITION The order denying defendant’s section 1172.6 petition is affirmed.

/s/ ROBIE, Acting P. J.

We concur:

/s/ BOULWARE EURIE, J.

/s/ FEINBERG, J.