People v. Russell CA4/1

California Court of Appeal · D078167 · 2021-03-22 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCN217314
Trial judge: Harry M. Elias
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Patricia D. Benke (author), Joan K. Irion, Patricia Guerrero

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:12Z · confidence high

The trial court denied defendant's petition for resentencing under Penal Code section 1170.95, determining he was ineligible because he was the actual killer of the victim. The Court of Appeal affirmed the denial, holding that the defendant's arguments challenging the validity of his felony murder conviction were not cognizable under the statute.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1170.95 “The trial court did not err in denying his petition under section 1170.95. (See People v. Gallo (2020) 57 Cal.App.5th 594, 599 [sole killer not eligible for resentencing under section 1170.95].)”	de novo	correct	agree with court agree with court

Authorities

relied: People v. Gallo (2020) 57 Cal.App.5th 594 — A defendant who is the sole killer is not eligible for resentencing under section 1170.95.
relied: People v. Covarrubias (2016) 1 Cal.5th 838 — A conviction becomes final when it reaches final disposition, limiting the scope of collateral relief.
relied: People v. Russell (2010) 187 Cal.App.4th 981 — The prior direct appeal established the facts that the defendant was the actual killer and rejected the argument that the felony murder escape rule did not apply.

The appellate opinion: sound — The opinion correctly applies the statutory limitation of section 1170.95, which does not authorize a review of the validity of the underlying conviction. It properly relies on the prior direct appeal record to establish that the defendant was the actual killer, rendering him ineligible for relief.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The trial court denied Karl Russell's Penal Code section 1170.95 resentencing petition after reviewing this court's 2010 opinion on direct appeal and finding he was the actual killer of Rodrigo Vega, who died when Russell crashed a stolen car into Vega's truck while fleeing police after a residential burglary. On appeal, appointed counsel filed a Wende/Anders brief, the Court of Appeal independently reviewed the record, rejected the defendant's supplemental arguments as attacks on a conviction final since 2010, and affirmed because a sole participant who personally caused the death is ineligible for section 1170.95 relief.

Ruling reviewed	Standard	The court	The model
Denial of section 1170.95 resentencing petition on the ground that defendant was the actual killer and therefore ineligible for relief “The trial court did not err in denying his petition under section 1170.95.”	unclear	correct	agree with court Senate Bill 1437 amended section 189, subdivision (e)(1) to preserve felony-murder liability for the actual killer; a defendant who alone drove the car that struck and killed the victim during flight from his own burglary is the actual killer regardless of whether the escape-rule theory of felony murder is sound. Section 1170.95 provides a vehicle only for persons who could not now be convicted under amended sections 188 and 189, not for relitigating causation, intent, or trial fairness in a conviction final since 2010. The court's reliance on Gallo and Covarrubias fits these points, and the defendant's own supplemental arguments did not identify error in the petition ruling. The court did not articulate a standard of review, but the ineligibility finding rests on an undisputed fact that appears from the verdicts themselves, so the result does not depend on the standard.
Trial court's reliance on the Court of Appeal's prior opinion in Russell I to establish the facts of the offense when ruling on the section 1170.95 petition “the trial court ruled it could use an appellate court’s opinion to establish the facts”	unclear	not reached	agree with court The Court of Appeal noted in a footnote that the question was pending before the Supreme Court in Lewis but did not analyze whether reliance on an appellate opinion was proper, instead resting on the undisputed fact that defendant was the sole participant. Even if use of the appellate opinion's factual summary were improper, any error would be harmless here because the jury verdicts (first degree murder, evading an officer causing death, burglary, vehicle theft, and personal use/personal infliction findings) and the undisputed circumstance that defendant alone drove the car establish he was the actual killer. Declining to resolve a question then pending in the Supreme Court when the outcome did not turn on it was a reasonable course.

Authorities

relied: People v. Russell (2010) 187 Cal.App.4th 981 — Prior opinion on direct appeal affirming the felony-murder conviction under the escape rule and supplying the statement of facts; the conviction became final after review was denied in 2010.
relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal independently reviews the record for arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Procedure for appointed counsel who finds no non-frivolous issues on a first appeal of right, including directing the court's attention to possible issues.
relied: People v. Covarrubias (2016) 1 Cal.5th 838 — A judgment of conviction becomes final when direct review is completed; cited for the proposition that defendant's conviction was final in 2010.
relied: People v. Gallo (2020) 57 Cal.App.5th 594 — A defendant who was the sole and actual killer is not eligible for resentencing under section 1170.95.

The appellate opinion: sound with gaps — The opinion reaches the correct result: an actual killer is categorically outside section 1170.95 relief, and the defendant's supplemental arguments attacked the underlying conviction rather than showing eligibility, so Gallo and Covarrubias answer them. It leaves gaps, however, by not stating a standard of review, by footnoting rather than deciding the propriety of relying on the appellate opinion for facts (then pending in Lewis), and by treating as moot the question whether Wende/Anders review applies to postconviction section 1170.95 appeals without engaging the existing Court of Appeal authority on that question.

How this analysis was made · dispute it

Opinion

Filed 3/22/21 P. v. Russell 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, D078167

Plaintiff and Respondent, v. (Super. Ct. No. SCN217314)

KARL JOSEPH RUSSELL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General and A. Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent. A complete statement of facts in this case is contained in this court’s opinion, People v. Russell (2010) 187 Cal.App.4th 981, 984–987 (Russell I). Briefly, on the night of September 5, 2006, a shadowy figure was seen acting suspiciously outside Klaas and Golda Meurs’ residence in Oceanside. He was observed to then enter the Meurses’ house. The residents of the house were not at home. Later, Carlsbad Police Sergeant Mickey Williams was in his marked patrol car when he observed the Meurses’ white Oldsmobile stopped at a red light. Defendant Karl Joseph Russell was driving it. Williams saw defendant rapidly accelerate before the light changed. A chase ensued and ended when defendant crashed the Oldsmobile into the side of a pickup truck driven by Rodrigo Vega. Vega was killed. When the officer approached defendant at the scene of the crash, defendant threatened him, stated he had a gun, and ran away. He was later found hiding at the side of an office building. PROCEDURAL STATEMENT On June 17, 2008, the District Attorney for San Diego County filed an amended information charging defendant with first degree murder in violation of Penal Code1 section 187, subdivision (a) (count 1), evading an officer, causing death in violation of Vehicle Code section 2800.3 (count 2), residential burglary in violation of section 459 (count 3), and vehicle theft in violation of Vehicle Code section 10851, subdivision (a) (count 4). The information alleged defendant personally used a deadly weapon in the commission of the murder under section 12022, subdivision (b)(1), and personally inflicted great bodily injury in the commission of the theft under section 12022.7, subdivision (a). On June 25, 2008, defendant was convicted of first degree murder, evading an officer causing death, burglary, and vehicle theft. The deadly weapon and great bodily injury allegations were found true. Defendant was sentenced to 25 years to life in prison.

1 Further statutory references are to the Penal Code unless otherwise specified. 2 He appealed his conviction. We denied his appeal, and the California Supreme Court denied review on December 1, 2010. (Russell I, supra, 187 Cal.App.4th 981.) On March 20, 2019, defendant filed a petition for resentencing under section 1170.95 alleging he had been convicted of murder under the felony murder rule and could not now be convicted of murder because of the changes made in the law. Counsel appointed for defendant argued the trial court was prohibited from using the facts from the appeal filed on the conviction. In response, the prosecutor argued defendant was not entitled to relief because he was the actual killer. On October 16, 2020, the trial court ruled it could use an appellate court’s opinion to establish the facts2 and, after examining this court’s opinion, it determined defendant was the actual killer, thus making him ineligible for resentencing under section 1170.95. Defendant filed a timely notice of appeal. DISCUSSION Defendant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Counsel states he has thoroughly reviewed the record and consulted with Appellate Defenders. He has summarized the proceedings and facts and has provided citations to the record. Counsel does not see any issues which if successful would modify or reverse defendant’s convictions. He asks this court to independently review the record per Wende and Anders. In order to assist the court in its independent review, counsel directs our attention to the denial of defendant’s request to reduce his sentence under section 1170.95. He specifically asks that we examine under Anders 2 This issue is pending before the Supreme Court in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted, March 18, 2020, S260598. 3 whether (1) the procedural protections under Wende and Anders extend to an appeal from a trial court’s order denying a defendant’s petition under section 1170.95; (2) whether the reviewing court in any event should conduct an independent review of the denial of section 1170.95 benefits; and (3) whether the denial of the petition was prejudicial. We requested supplemental briefing on this issue and the parties have responded. After we issued our order requesting supplemental briefing on the necessity of our independent review of the record, defendant filed a supplemental brief of his own. The Attorney General contends, and we agree, that our question whether we should conduct an independent review of the record is moot because we must conduct an independent review and prepare an opinion discussing the defendant’s issues in any event. Defendant does not point to error in the court’s denial of the petition. He argues instead against the felony murder rule and its application here, referring to Justice McIntyre’s dissenting opinion in the direct appeal that the felony murder escape rule did not apply to the circumstances here. (Russell I, supra, 187 Cal.App.4th at pp. 996–997 [dis. opn., McIntyre J.].) We considered and rejected that position in 2010. Defendant also claims that the cause of the victim’s death was not his reckless driving but the victim’s failure to wear a seatbelt; that he was too intoxicated to form the specific intent to take anything permanently from the Meurses’ house; that the prosecution was biased against him; and other arguments related either to the conduct of the trial in 2008 or the parameters of the felony murder rule in general. Defendant’s conviction was final, however, in 2010 when it reached final disposition. (See People v. Covarrubias (2016) 1 Cal.5th 838, 935.) Section 1170.95 does not authorize a review of the validity of the conviction 4 itself. Defendant’s claim that he should not have been found guilty of felony murder is not a basis for relief under section 1170.95. Defendant was the sole participant in the death of the victim, during defendant’s commission of and escape from his felony residential burglary. The trial court did not err in denying his petition under section 1170.95. (See People v. Gallo (2020) 57 Cal.App.5th 594, 599 [sole killer not eligible for resentencing under section 1170.95].) Defendant has been represented on this appeal by competent counsel. DISPOSITION The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

IRION, J.

GUERRERO, J.

Cites, in this corpus

People v. Covarrubias S075136 · 2016-09-08
People v. Russell D054408 · 2010-08-23
People v. Wende Crim. 20851 · 1979-10-12