People v. Flowers CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD193788
- Trial judge
- John M. Thompson
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Cynthia Aaron, William S. Dato
Analysis
The trial court denied Rico Flowers' petition for resentencing under Penal Code section 1170.95, finding he was ineligible because the record established he was the actual killer. The Court of Appeal affirmed the denial in an unpublished opinion following a Wende review that found no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“The court found the record established Flowers was the actual killer and was therefore ineligible for relief under section 1170.95.” | de novo | correct | agree with court The appellate court affirmed the denial, finding no arguable issues for reversal after reviewing the entire record. The trial court's determination that Flowers was the 'actual killer' renders him ineligible for relief under section 1170.95, which is a matter of law based on the record of conviction. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error and file a brief identifying any arguable issues, or stating that none exist.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and to request leave to withdraw, allowing the court to independently review the record.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing an appeal where counsel identifies no issues. The court explicitly states it reviewed the entire record and found no arguable issues, which is the required standard of review in this context. However, the opinion provides no substantive legal analysis regarding the 'actual killer' determination, relying entirely on the prior unpublished opinion for facts.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Rico Flowers's Penal Code section 1170.95 resentencing petition after appointing counsel, receiving briefing, and reviewing the record of conviction, finding he was the actual killer and therefore ineligible for relief. On appeal, appointed counsel filed a Wende brief, Flowers filed no supplemental brief, 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 on the ground that the record of conviction established Flowers was the actual killer and thus ineligible for relief as a matter of law“The court found the record established Flowers was the actual killer and was therefore ineligible for relief under section 1170.95.” | unclear | correct | agree with court Section 1170.95 provides relief only to those convicted under felony-murder or natural-and-probable-consequences theories who could not now be convicted; an actual killer is categorically ineligible. The jury found Flowers personally discharged a firearm causing death (§ 12022.53, subd. (d)), which strongly supports the actual-killer determination from the record of conviction. Counsel found no arguable issue and the court's independent Wende/Anders review found none; nothing in the opinion suggests legal error. The opinion is thin on reasoning, so my agreement rests on the stated finding and the enhancement rather than a detailed analysis. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal independently reviews the entire record for arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal lacking in merit should identify anything in the record that might arguably support the appeal to assist the reviewing court.
The appellate opinion: sound with gaps — The result is defensible: a jury finding that Flowers personally discharged a firearm causing death supports the trial court's conclusion that he was the actual killer and ineligible under section 1170.95, and no supplemental brief raised any contrary argument. The opinion, however, does not explain why the actual-killer finding was proper on the record of conviction and does not address the then-existing split among appellate courts over whether Wende review applies to postconviction appeals from section 1170.95 denials.
Opinion
Filed 3/18/21 P. v. Flowers 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, D077976
Plaintiff and Respondent, v. (Super. Ct. No. SCD193788)
RICO FLOWERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2007, a jury convicted Rico Flowers of first degree murder (Pen.
Code,1 § 187, subd. (a)). The jury also found true an allegation that Flowers personally discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d)) and that the crime was committed for the benefit of a 1 All further statutory references are to the Penal Code. criminal street gang (§ 186.22, subd. (b)(1)). The court sentenced Flowers to an indeterminate term of 50 years to life in prison. Flowers appealed and this court affirmed the judgment in an unpublished opinion. (People v. Flowers (D051720, Jan. 22, 2009) [nonpub. opn.].) In 2019, Flowers filed a petition for resentencing under section 1170.95. The court appointed counsel, received briefing from the parties, and reviewed the record of conviction. The court found the record established Flowers was the actual killer and was therefore ineligible for relief under section 1170.95. The court denied the petition by written order. Flowers filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating he has not been able to identify any arguable issue for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Flowers the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS The facts of the offenses in this case are fully set forth in our prior opinion in People v. Flowers, supra, D051720. We will not 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. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issue that was considered in evaluating the potential merits of this appeal: Whether the trial court prejudicially erred by summarily denying the petition for resentencing for failure to set forth a prima facie case for relief.
2 We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Flowers on this appeal. DISPOSITION The order denying appellant’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
DATO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12