People v. Griffin CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD267344
- Trial judge
- Melinda J. Lasater
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Buchanan (author), Joan K. Irion, Truc T. Do
Analysis
The trial court denied Griffin's petition for resentencing under Penal Code section 1172.6, finding he failed to make a prima facie showing of eligibility because he was convicted as the actual shooter and the jury was not instructed on imputed malice theories. The Court of Appeal affirmed the order after conducting an independent Wende/Anders review of the record and finding no arguable issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under former Penal Code section 1170.95 (now section 1172.6) for failure to make a prima facie showing of eligibility.“And, therefore, I’m finding that the defendant has not made a prima facie showing, and that the petition is denied.” | unclear | correct | agree with court agree with court |
Consideration of the prior appellate opinion (People v. Griffin, D074956) as part of the record of conviction.“The trial court held a hearing on the petition. After hearing arguments, the court ruled that it could consider our prior decision “as part of the record of conviction . . . .”” | unclear | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by appellate counsel when no arguable issues are raised in the opening brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potential issues for independent court review when no arguable issues exist.
- relied: People v. Figueras (2021) 61 Cal.App.5th 108 — Holds that a defendant has no right to Wende/Anders review in an appeal from the denial of a section 1172.6 petition.
- relied: People v. Gallo (2020) 57 Cal.App.5th 594 — Holds that while Wende/Anders review is not required for section 1172.6 appeals, appellate courts have discretion to conduct such review in the interests of justice.
The appellate opinion: sound with gaps — The court conducted an independent review of the record as required by Wende and Anders, finding no arguable issues that would warrant reversal. The court noted that the trial court's reliance on the verdict forms and jury instructions demonstrated that Griffin was the actual shooter and was not convicted under an imputed malice theory, supporting the denial of the petition.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court denied Aaron Griffin's Penal Code section 1172.6 (former 1170.95) resentencing petition at the prima facie stage, finding from the jury instructions, verdict forms, and the prior appellate opinion that he was convicted as the actual shooter and that no felony-murder, natural-and-probable-consequences, or other imputed-malice theory was presented to the jury. On appeal, appointed counsel filed a Wende/Anders brief, Griffin filed a supplemental brief, and the Court of Appeal, electing to conduct independent review despite the pending Delgadillo question, found no arguable issue and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1172.6 petition for failure to make a prima facie showing because the jury was instructed only on malice-based murder (with self-defense and imperfect self-defense) and not on felony murder, natural and probable consequences, or any imputed-malice theory“There is no theory that was offered to the jury that would have fallen under the new legislation that would allow for relief for resentencing.” | unclear | correct | agree with court The opinion recites that the jury received CALCRIM Nos. 520, 521, 522, 505, 3471-3472 and 571 and no instruction on felony murder or natural and probable consequences. Under People v. Lewis (2021) 11 Cal.5th 952, a court may rely on the record of conviction, including jury instructions, to deny a petition at the prima facie stage where the record conclusively refutes the petitioner's allegations as a matter of law. Where no imputed-malice theory was ever presented to the jury, the petitioner is ineligible as a matter of law, so the result is correct even though the trial court's additional reliance on the firearm enhancement as proof of actual-killer status is a weaker ground (see People v. Offley (2020) 48 Cal.App.5th 588). The appellate court, however, gave no reasoning and did not cite Lewis. |
Trial court's consideration of the prior appellate opinion in People v. Griffin (D074956) as part of the record of conviction at the prima facie stage“the court ruled that it could consider our prior decision “as part of the record of conviction . . . .”” | unclear | correct | agree with court Lewis held that the record of conviction, including a prior appellate opinion, may be considered at the prima facie stage, although the probative value of the opinion is limited and the court may not engage in factfinding. Here the dispositive material was the jury instructions and verdict forms, not the appellate opinion's factual narrative, so any over-reliance on the opinion would be harmless. The Court of Appeal did not discuss this issue beyond noting counsel had flagged it. |
Implicit rejection of the contention that the prosecutor's failure to respond to the petition within the 60-day period required reversal“whether the prosecutor’s failure to file its response within 60 days of service of the petition warrants reversal” | unclear | correct | agree with court Section 1172.6, subdivision (c) sets a 60-day response period but provides no remedy of automatic relief for a late filing, and Griffin, who was appointed counsel and filed a reply, identifies no prejudice; a petitioner ineligible as a matter of law cannot obtain relief by default. The appellate court did not explain this, but the result is defensible. |
Rejection of Griffin's supplemental-brief claims that the prosecutor stated fraudulent facts and that his murder conviction should be vacated for insufficient evidence“requesting that we vacate his murder conviction due to lack of evidence and allegedly fabricated theories used by the People to convict him” | unclear | correct | agree with court A section 1172.6 petition is not a vehicle to relitigate the sufficiency of the evidence or the fairness of the original trial, which was already affirmed on direct appeal in 2020; the only question is whether the petitioner could still be convicted of murder under current law. The opinion's summary disposition of these claims is consistent with the limited scope of the statute, although it offers no analysis. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate court independently reviews the record when appointed counsel files a brief raising no arguable issues
- relied: Anders v. California (1967) 386 U.S. 738 — Federal constitutional framework for appointed counsel's no-merit brief and independent appellate review
- relied: People v. Figueras (2021) 61 Cal.App.5th 108 — No right to Wende/Anders review in an appeal from denial of a section 1170.95/1172.6 petition
- relied: People v. Gallo (2020) 57 Cal.App.5th 594 — Wende/Anders review not required in a section 1172.6 appeal, but the appellate court has discretion to conduct it in the interests of justice
- missed: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage the court may consider the record of conviction, including jury instructions and (with limited probative value) a prior appellate opinion, and may deny the petition only where the record refutes the allegations as a matter of law without factfinding; the court did not cite this controlling authority although counsel's flagged issues squarely implicated it
The appellate opinion: sound with gaps — The affirmance is correct because the jury instructions show Griffin was convicted solely on a malice-aforethought theory, which makes him ineligible for section 1172.6 relief as a matter of law. The opinion, however, provides no analysis of the three issues counsel identified or of Griffin's supplemental brief, and it omits People v. Lewis, the controlling Supreme Court authority on prima facie review and use of the record of conviction.
Opinion
Filed 10/25/22 P. v. Griffin 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, D080475
Plaintiff and Respondent, v. (Super. Ct. No. SCD267344)
AARON GRIFFIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed. Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent. Aaron Griffin appeals from an order denying his petition to vacate his murder conviction and for resentencing under former Penal Code section 1170.95 (now section 1172.6).1 His appointed appellate counsel filed an opening brief raising no arguable issues. (People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) Griffin also filed a supplemental brief on his own behalf. We have independently reviewed the record and find no arguable issue that would result in a modification or reversal of the trial court’s order. 2 Accordingly, we affirm the trial court’s order. FACTUAL AND PROCEDURAL BACKGROUND On May 17, 2016, a shootout between two drivers at the intersection of Euclid and Market in San Diego left driver Jamar J. dead. Police identified the driver of the other vehicle as Griffin. Griffin was charged with first degree murder (§187, subd. (a)), assault with a semi-automatic firearm (§ 245, subd. (b)), and shooting at an occupied vehicle (§ 246). The information alleged that in the commission of these offenses, Griffin personally used a firearm (§ 12022.5, subd. (a)), personally and intentionally used a firearm (§ 12022.53, subd. (b)), and personally and 1 Section 1170.95 was amended effective January 1, 2022 and then renumbered as section 1172.6 without substantive change on June 30, 2022. (See Stats. 2022, ch. 58, § 10, (Assem. Bill No. 200).) We refer to the subject statute by its current number throughout this opinion. All further statutory references are to the Penal Code.
2 We recognize some courts have ruled that a defendant has no right to Wende/Anders review in an appeal from the denial of a section 1172.6 petition for resentencing. (See, e.g., People v. Figueras (2021) 61 Cal.App.5th 108, 110–113.) Other courts have concluded that Wende/Anders review is not required, but that appellate courts have discretion to conduct such a review in the interests of justice. (People v. Gallo (2020) 57 Cal.App.5th 594, 598– 599.) Because this issue is currently pending before the Supreme Court (People v. Delgadillo (Nov. 18, 2020, B30441), review granted Feb. 17, 2021, S266305), we have opted to conduct a Wende/Anders review. 2 intentionally discharged a firearm proximately causing great bodily injury or death (§ 12022.53, subd. (d)). Griffin was also charged with shooting at an inhabited dwelling (§ 246) for a separate incident that occurred 10 days earlier involving a shooting into the home of Jamar’s next-door neighbor. At trial, Griffin argued that he committed the May 17, 2016 shooting in self-defense. The court instructed the jury on murder with malice aforethought (CALCRIM No. 520), first degree murder based on either a willful, deliberate, and premeditated killing or shooting a firearm from a motor vehicle (CALCRIM No. 521), provocation (CALCRIM No. 522), self- defense (CALCRIM Nos. 505, 3471-3472), and voluntary manslaughter based on imperfect self-defense (CALCRIM No. 571). The court gave no jury instructions on felony murder, the natural and probable consequences doctrine, or any other theory of imputed malice. In August 2018, the jury convicted Griffin as charged of first degree murder and the other charges and found true all of the firearm allegations. The court sentenced Griffin to imprisonment for 50 years to life plus seven years eight months. In October 2020, we affirmed the judgment on appeal. (People v. Griffin (Oct. 21, 2020, D074956) [nonpub. opn.].) In August 2021, Griffin filed a petition for resentencing under former section 1170.95 (now section 1172.6). The trial court appointed counsel for Griffin. The People filed a response to the petition. The People’s response included as exhibits the verdict forms and jury instructions from the underlying trial and this court’s opinion from the prior appeal. The People argued that Griffin was ineligible for relief under section 1172.6 because he was convicted as the actual killer, not under the felony murder doctrine, the natural and probable consequences theory, or any other imputed malice theory. Griffin’s counsel filed a reply brief on his behalf.
3 The trial court held a hearing on the petition. After hearing arguments, the court ruled that it could consider our prior decision “as part of the record of conviction . . . .” The court further concluded: “In this particular case, it’s clear from the verdict forms also that the defendant was the actual shooter because the defendant was charged with and personally used a firearm and that was found to be true in the commission of the offense. [¶] So it is, in my mind, clear that he is not entitled to relief. In addition, if you look at the instructions . . . that were given to the jury. There is no theory that was offered to the jury that would have fallen under the new legislation that would allow for relief for resentencing. [¶] And, therefore, I’m finding that the defendant has not made a prima facie showing, and that the petition is denied.” Griffin filed a timely notice of appeal. His appointed appellate counsel filed an opening brief raising no issues and asking us to review the record for error under Wende and Anders. The opening brief identified three potential issues to assist this court in conducting its independent review of the record: (1) whether the trial court erred by considering our prior decision in the first appeal; (2) whether the prosecutor’s failure to file its response within 60 days of service of the petition warrants reversal; and (3) whether the trial court properly found that Griffin had not made a prima facie showing of entitlement to relief. Griffin also filed his own supplemental brief arguing that the Deputy District Attorney stated fraudulent facts in her response to the petition for resentencing and requesting that we vacate his murder conviction due to lack of evidence and allegedly fabricated theories used by the People to convict him.
4 DISCUSSION We have reviewed the entire record as required by Wende and Anders. We have also considered the issues identified by counsel in the opening brief and by Griffin in his supplemental brief. We have not discovered any arguable issue that would result in a reversal or modification of the trial court’s ruling. Competent counsel has represented Griffin in this appeal. Accordingly, we affirm the trial court’s order. DISPOSITION The order denying Griffin’s petition for resentencing under section 1172.6 is affirmed.
BUCHANAN, J.
WE CONCUR:
IRION, Acting P. J.
DO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12