People v. Halbert CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD128329
- Trial judge
- Kenneth K. So
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, O'Rourke
Analysis
The trial court denied Halbert's petition for resentencing under Penal Code section 1170.95, determining that his concurrent conviction for conspiracy to murder demonstrated he acted with specific intent to kill, rendering him ineligible for relief as a matter of law. The Court of Appeal affirmed the order, finding no arguable issues for reversal after an independent review of the record pursuant to People v. Wende.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95 without an evidentiary hearing“The court determined from the record of conviction that Halbert’s conviction of conspiracy to murder demonstrated the jury found he acted with specific intent to kill. Thus, the court found Halbert was not eligible for resentencing under section 1170.95 as a matter of law.” | unclear | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when no issues are identified by the client.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from representation after certifying the appeal is wholly frivolous.
The appellate opinion: sound with gaps — The opinion is procedurally sound in its application of the Wende/Anders framework to review the record for error. However, it is substantively thin, as it fails to explicitly cite the specific legal authority establishing that a conspiracy to murder conviction precludes eligibility for section 1170.95 relief, relying instead on a general statement that no arguable issues were found.
How this analysis was made · dispute it
unusual disposition unusual dispositionThe San Diego Superior Court denied Derrick Halbert's Penal Code section 1170.95 resentencing petition without an evidentiary hearing, finding from the record of conviction that his jury conviction for conspiracy to murder established he acted with specific intent to kill and was ineligible for relief as a matter of law. On appeal, counsel filed a Wende brief, Halbert filed nothing, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.95 petition at the prima facie stage, without an evidentiary hearing, on the ground that the record of conviction (conspiracy to murder verdict) showed the jury found specific intent to kill, making petitioner ineligible as a matter of law“The court determined from the record of conviction that Halbert’s conviction of conspiracy to murder demonstrated the jury found he acted with specific intent to kill. Thus, the court found Halbert was not eligible for resentencing under section 1170.95 as a matter of law.” | unclear | correct | agree with court A conviction for conspiracy to commit murder necessarily requires a finding of specific intent to kill (express malice), so a petitioner convicted of both murder and conspiracy to murder the same victim could still be convicted of murder under the amended law as a direct aider and abettor with intent to kill; he is therefore ineligible under section 1170.95 regardless of whether natural-and-probable-consequences instructions were given. Reliance on the record of conviction at the prima facie stage was later confirmed as permissible by the Supreme Court. The opinion, however, conducts only Wende review and cites no authority for the intent-to-kill proposition or for the propriety of denying without a hearing. |
Whether the denial of the petition was prejudicial error (counsel's second Anders issue)“We have reviewed the entire record as mandated by Wende and Anders. We have not discovered any arguable issues for reversal on appeal.” | unclear | correct | agree with court Because the conspiracy-to-murder verdict establishes intent to kill, the petition could not have succeeded at an evidentiary hearing, so any procedural shortcoming in denying it at the prima facie stage would be harmless. The court's conclusion that no arguable issue exists follows, though it is stated without analysis. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the reviewing court must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous should file a brief referring to anything in the record that might arguably support the appeal.
- missed: People v. Swain (1996) 12 Cal.4th 593 — Conspiracy to commit murder requires a finding of specific intent to kill (express malice); it cannot rest on implied malice. This binding authority directly supports the trial court's reasoning but the opinion cites no authority for the proposition.
The appellate opinion: sound with gaps — The result is correct because a conspiracy-to-murder conviction necessarily reflects a jury finding of intent to kill, which forecloses section 1170.95 relief. The opinion, however, is a bare Wende affirmance that cites no authority for the specific-intent proposition (e.g., People v. Swain) and does not address the then-unsettled question whether a court may consult the record of conviction to deny a petition at the prima facie stage without an evidentiary hearing.
Opinion
Filed 8/20/20 P. v. Halbert 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, D077056
Plaintiff and Respondent, v. (Super. Ct. No. SCD128329)
DERRICK EDWARD HALBERT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. This is an appeal from the denial of appellant’s petition for resentencing under Penal Code1 section 1170.95 without conducting an evidentiary hearing. We will affirm the order since the record of conviction demonstrates appellant was originally convicted of both murder and 1 All further statutory references are to the Penal Code. conspiracy to murder, thus demonstrating appellant acted with the specific intent to kill the victim. A jury convicted Derrick Edward Halbert and a codefendant of first degree murder (§ 187, subd. (a)) and conspiracy to murder (§ 182, subd. (a)(1)). The jury also found Halbert used a firearm (§ 12022, subd. (a)(1)). Halbert was sentenced to an indeterminate term of 56 years to life. Halbert appealed his conviction and this court affirmed the judgment in an unpublished opinion (People v. Halbert (Nov. 9, 1999, D031427 [nonpub. opn.]). We also denied Halbert’s petition for habeas corpus on the same date. In August 2019, Halbert filed a petition under section 1170.95, alleging he had been convicted of murder on a theory of natural and probable consequences or as a non-participating aider and abettor to a felony murder. The court appointed counsel and on November 22, 2019, the court denied the petition by written order. The court determined from the record of conviction that Halbert’s conviction of conspiracy to murder demonstrated the jury found he acted with specific intent to kill. Thus, the court found Halbert was not eligible for resentencing under section 1170.95 as a matter of law. Halbert has filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating she has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Halbert the opportunity to file his own brief on appeal, but he has not responded.
2 STATEMENT OF FACTS The facts of the underlying convictions are fully set forth in our opinion in People v. Halbert, supra, D031427. We see no reason to repeat them here. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks this court to review the record for error as mandated by Wende. To assist the court in its review of the record, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues which were considered in evaluating the potential merits of this appeal: 1. Whether the court erred in finding Halbert’s conviction precluded relief under section 1170.95; and 2. Whether the trial court’s denial of Halbert’s petition was prejudicial error. We have reviewed the entire record as mandated by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Halbert on this appeal.
3 DISPOSITION The order denying Halbert’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12