People v. Romero CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN288104
- Trial judge
- Michael K. Kirkman
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Patricia D. Benke (author), Judith L. Haller, Joan K. Irion
Analysis
The trial court denied defendant's petition to vacate his second-degree murder conviction and resentence him under Penal Code section 1170.95, finding he was ineligible because he acted with implied malice. The Court of Appeal affirmed the judgment, agreeing that the statute does not provide relief to persons who killed directly with malice.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to vacate murder conviction and resentence under Penal Code section 1170.95“We have found no error. Defendant committed murder with implied malice when he killed Lopez, Sr., by driving while under the influence of alcohol. Section 1170.95 does not provide relief to persons who killed directly, with malice.” | de novo | not reached | agree with court The appellate court found no error in the trial court's denial of the petition. The court reasoned that the defendant committed murder with implied malice by driving under the influence, and that Penal Code section 1170.95 does not provide relief to individuals who killed directly with malice. This aligns with the statutory requirement that the petitioner must be eligible for resentencing, which excludes those who acted with malice aforethought (express or implied) in the commission of the murder. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for appointed appellate counsel to review the record for arguable issues when a defendant files a Wende/Anders brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and to notify the client of the right to file a pro per brief.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the Wende/Anders protocol for reviewing the record when appointed counsel finds no arguable issues. However, the substantive legal analysis is extremely brief, relying on a single sentence to conclude that implied malice murder is ineligible for relief under section 1170.95 without citing specific statutory text or case law supporting that interpretation, which is a gap in the reasoning.
How this analysis was made · dispute it
unusual dispositionThe trial court denied William Romero's Penal Code section 1170.95 petition to vacate his second degree murder conviction, finding him ineligible because he was convicted of implied-malice (Watson) murder for killing a motorist while driving drunk at roughly 100 miles per hour. On appeal, appointed counsel filed a Wende/Anders brief, the Court of Appeal independently reviewed the record, found no arguable error because section 1170.95 does not reach a direct killer who acted with malice, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Penal Code section 1170.95 petition for resentencing on the ground that defendant was ineligible as a matter of law“Section 1170.95 does not provide relief to persons who killed directly, with malice.” | unclear | correct | agree with court Section 1170.95, as enacted by Senate Bill 1437, provides relief only to defendants convicted of murder under the felony-murder rule or the natural and probable consequences doctrine. Defendant was the actual killer, prosecuted and convicted on an implied-malice theory for driving under the influence at extreme speed after announcing someone would die if he drove; that theory requires the defendant's own subjective conscious disregard for life and is unaffected by SB 1437. Ineligibility is apparent from the record of conviction, so denial at the prima facie stage was proper. The opinion does not state a standard of review and cites no substantive authority, but the result follows directly from the statutory text. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the reviewing court independently examines the entire record to determine whether any arguable issue exists.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound with gaps — The result is plainly correct: a defendant convicted as the actual killer on an implied-malice theory is outside the scope of section 1170.95, and the court's independent review of the record provided an adequate safeguard. The opinion, however, cites no authority for its substantive conclusion about the reach of section 1170.95 or for the implied-malice vehicular murder theory, and it does not address the then-unsettled question whether Wende review applies at all to appeals from postconviction section 1170.95 denials.
Opinion
Filed 11/24/20 P. v. Romero 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, D077813
Plaintiff and Respondent, v. (Super. Ct. No. SCN288104)
WILLIAM ROMERO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Michael K. Kirkman, Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent. BACKGROUND Briefly, on Easter Day in 2010, defendant William Romero went to a party at the home of his ex-wife. He was already intoxicated. He drank tequila and beer. He made a comment that if he drove that night, “someone was going to die.” He became loud and belligerent. Defendant later drove and while driving southbound on I-5 at approximately 100 miles an hour, he crashed into a Ford Explorer, killing Oscar Lopez Sr. and seriously wounding Oscar Lopez Jr. when both were thrown from the Explorer. Two other persons in the Explorer did not sustain injuries requiring treatment. Defendant fled the scene. He was later spotted by officers walking along the freeway and then found lying in brush on a trail toward the beach. Tests reflected that at the time of the crash defendant’s blood alcohol level was between .125 and .145 percent.1 Defendant was found guilty of second degree murder (Penal Code2 § 187, subd. (a); count 1); gross vehicular manslaughter (§ 191.5, subd. (a); count 2); driving under the influence causing injury (Veh. Code, § 23153, subd. (a); count 4); driving with a blood alcohol level of .08 or higher causing injury (Veh. Code, § 23153, subd. (b); count 5); and hit and run with death or permanent serious injury (Veh. Code, § 20001, subd. (b)(2); count 6). As to count 2, the jury also found true the allegation defendant fled the scene of the crime after committing the offense (Veh. Code, § 20001, subd. (c)). On counts 4 and 5, the jury found true that defendant caused great bodily injury to Oscar Lopez, Sr. (§ 12022.7, subd. (a)). Defendant was sentenced to a total of 15 years to life in prison for the murder plus one year, consecutive, for a prior prison term conviction (§ 667.5, subd. (b)) that the court had found true.
1 We have granted judicial notice of our prior opinion, People v. Romero (Apr. 30, 2013, D060887) [nonpub. opn.], and summarize the facts set forth in that opinion.
2 All further statutory references are to Penal Code unless otherwise noted. 2 Defendant filed an appeal. The People agreed that counts 4 and 5 were lesser included offenses of count 2. The court therefore modified the judgment to reverse the convictions on counts 4 and 5. In June 2019, defendant filed a petition to vacate his murder conviction and for resentencing pursuant to section 1170.95. On January 24, 2020, the court appointed counsel and set a briefing schedule. On February 16, 2020, the People filed an initial response to defendant’s petition. Defendant filed a reply. On June 17, 2020, the court denied defendant’s petition, finding he was not eligible under the statute. Defendant filed a timely notice of appeal. DISCUSSION Counsel for defendant has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 (Anders) stating he has thoroughly reviewed the record and consulted with Appellate Defenders, Inc. He has summarized the record and outlines the possible issues considered. Counsel has also advised his client of the filing in this case and the right to file a pro. per. brief. We have conducted a review of the entire record to determine if there are any issues, which if found favorable to defendant, would result in a modification or reversal of any of his convictions, or his sentence. Included in our examination was an examination of an Anders issue to which we were directed by counsel, i.e., as to whether the trial court erred in dismissing defendant’s petition for resentencing under section 1170.95. We have found no error. Defendant committed murder with implied malice when he killed Lopez, Sr., by driving while under the influence of 3 alcohol. Section 1170.95 does not provide relief to persons who killed directly, with malice. Defendant has not filed a supplemental brief. Defendant has been represented by competent counsel on appeal. DISPOSITION The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12