People v. Burton CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD212531
- Trial judge
- David M. Gill
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), William S. Dato, Patricia Guerrero
Analysis
The trial court denied Burton's petition for resentencing under Penal Code section 1170.95, finding that the record of conviction established he was the actual shooter. The Court of Appeal affirmed the denial, finding no arguable issues for reversal after an independent review of the record pursuant to Wende and Anders.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“The court denied the petition by written order which found the record established Burton was the shooter who killed the victim.” | de novo | correct | agree with court The appellate court affirmed the trial court's denial, concluding that the record of conviction, including the prior unpublished appellate opinion, established that Burton was the actual killer. Under the standard of review for a section 1170.95 petition, the trial court's determination of eligibility is reviewed de novo, and the appellate court found no error in the trial court's conclusion that the record negated Burton's prima facie showing of eligibility. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when counsel cannot identify any, and mandates the court to conduct an independent review of the record.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from representation by filing a brief identifying arguable issues and requesting the court to review the record for error.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing an appeal where counsel identifies no arguable issues. The court explicitly states it reviewed the entire record and found no error, which satisfies the mandate for independent review in such cases.
How this analysis was made · dispute it
unusual dispositionThe superior court denied Rayshon Burton's Penal Code section 1170.95 resentencing petition after appointing counsel, receiving briefing, and reviewing the record of conviction, finding the record established Burton was the actual shooter who killed the victim. On appeal, appointed counsel filed a Wende/Anders brief, Burton filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed the order.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95 on the ground that the record of conviction showed Burton was the actual killer and therefore ineligible for relief as a matter of law.“The court denied the petition by written order which found the record established Burton was the shooter who killed the victim.” | unclear | correct | agree with court The jury's true finding that Burton personally discharged a firearm causing death (§ 12022.53, subd. (d)) together with the first degree murder verdict establishes that he was the actual killer, and the actual killer remains liable for murder after the 2019 amendments to sections 188 and 189, so he is ineligible for section 1170.95 relief as a matter of law. The court appointed counsel and received briefing before ruling, so the procedural concerns later addressed by the Supreme Court are not implicated. The opinion recites no facts and applies no stated standard, but the record it describes supports the result. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel finds no arguable issues, the appellate court must independently review the entire record for error in an indigent defendant's appeal.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous must file a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound with gaps — The court conducted an independent Wende review and affirmed, a defensible result because the firearm-discharge-causing-death finding made Burton the actual killer and ineligible for section 1170.95 relief. The opinion does not, however, address whether Wende review applies at all to appeals from postconviction orders (a question then dividing the Courts of Appeal), nor does it explain why the three potential issues counsel flagged lack merit, leaving its reasoning conclusory.
How this analysis was made · dispute it
record incompleteOpinion
Filed 3/18/21 P. v. Burton 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, D077855
Plaintiff and Respondent, v. (Super. Ct. No. SCD212531)
RAYSHEON MARQUISE BURTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2009, a jury convicted Raysheon Marquise Burton of first degree murder (Pen. Code,1 § 187, subd. (a); count 1) and attempted premeditated murder (§§ 187 and 664; count 2). The jury found Burton was armed with a 1 All further statutory references are to the Penal Code. firearm (§ 12022, subd. (a)(1)), and personally discharged a firearm causing death or great bodily injury (§ 12022.53, subds. (b), (c), and (d)). Burton was sentenced to an indeterminate term of 75 years to life in prison. Burton appealed and this court affirmed his convictions in an unpublished opinion. (People v. Burton (Jan. 13, 2012, D056818) [nonpub. opn.].) In March 2019, Burton filed a petition for resentencing under section 1170.95. The court appointed counsel, received briefing, and reviewed the record of conviction. The court denied the petition by written order which found the record established Burton was the shooter who killed the victim. Burton filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has been unable 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 Burton the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS The facts of the offenses are fully set forth in our prior opinion. We decline to repeat them here. (People v. Burton, supra, D056818.) DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the 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 issues which were considered in evaluating the potential merits of this appeal:
2 1. Whether the petition provided the necessary facts or explanation why Burton “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019”; 2. Whether the verdicts made clear Burton was either the actual killer, aided and abetted the actual killer while harboring the intent to kill, or was a major participant in the shooting and acted with reckless indifference to human life; and 3. Whether the trial court properly considered the record of conviction, including the appellate opinion in determining his eligibility for resentencing. 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 Burton on this appeal. DISPOSITION The order denying Burton’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
DATO, J.
GUERRERO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12