People v. Harper CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCN308840
- Trial judge
- Blaine K. Bowman
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, Julia C. Kelety
Analysis
The trial court denied Harper's petition for resentencing under Penal Code section 1172.6, finding she failed to establish a prima facie case because the record showed she was convicted as the sole perpetrator and actual killer, not under a felony murder or natural and probable consequences theory. The Court of Appeal affirmed the denial, determining that the petition was not a vehicle to challenge trial jury instructions or self-defense claims, and that no arguable issues for reversal existed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.6 for failure to establish a prima facie case.“The court found Harper had not presented a prima facie case for relief under section 1172.6 and therefore denied the petition.” | de novo | correct | agree with court The appellate court correctly applied the standard that a petitioner must make a prima facie showing of eligibility for relief under section 1172.6. The record, including verdict forms and jury instructions, clearly indicated Harper was convicted as the sole perpetrator and actual killer, which is not a theory eliminated by the statute. Therefore, the trial court did not err in denying the petition at the first stage without issuing an order to show cause. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appointed appellate counsel to file a brief identifying no arguable issues and requesting independent review of the record.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate courts to independently review the record for error when appointed counsel identifies no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues, even if none are found, to ensure effective assistance of counsel on appeal.
The appellate opinion: sound — The opinion is sound because it correctly identifies that the scope of a section 1172.6 petition is limited to statutory eligibility and does not permit collateral attack on trial jury instructions or self-defense claims. The court properly relied on the record to confirm Harper was convicted as the actual killer, a theory not affected by the statute, and correctly applied Wende/Anders review to find no error.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Julie Harper's Penal Code section 1172.6 resentencing petition at the prima facie stage after reviewing the record of conviction, finding the jury was never instructed on felony murder or natural and probable consequences and had found she personally and intentionally discharged a firearm causing death. On appeal, counsel filed a Delgadillo brief, Harper filed a supplemental brief, and the Court of Appeal independently reviewed the record under Wende, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1172.6 petition at the prima facie stage without issuing an order to show cause, based on the jury instructions and verdict forms in the record of conviction“The court found Harper had not presented a prima facie case for relief under section 1172.6 and therefore denied the petition.” | unclear | correct | agree with court Under People v. Lewis (2021) 11 Cal.5th 952, a trial court may consult the record of conviction, including jury instructions, at the prima facie stage and deny a petition where the record refutes the petitioner's allegations as a matter of law. The jury here was not instructed on felony murder, natural and probable consequences, or any imputed-malice theory, and it found Harper personally and intentionally discharged a firearm proximately causing death, so she was convicted as the actual killer and is ineligible for relief. Harper's contention that checking the form allegations alone establishes a prima facie case is contrary to Lewis. The appellate court did not articulate a standard of review, but the result is correct under de novo review. |
Rejection of Harper's supplemental-brief claims that the jury instructions were erroneous and that she acted in self-defense warranting a manslaughter conviction“this appeal is from the denial of a petition seeking specific relief under a statutory process for resentencing and does not serve as a vehicle to challenge the jury instructions given at the trial.” | unclear | correct | agree with court Section 1172.6 provides relief only to persons convicted under felony murder, natural and probable consequences, or other theories in which malice is imputed based solely on participation in a crime. Claims of instructional error or self-defense at the 2015 trial were matters for the direct appeal (already decided in D069632) or habeas corpus, not a resentencing petition. The court correctly held these claims fall outside the scope of the statutory procedure. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende procedures do not apply as a matter of right to appeals from denial of section 1172.6 petitions, but the appellate court may exercise discretion to independently review the record and must allow the defendant to file a supplemental brief.
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the reviewing court independently reviews the entire record for arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous should file a brief referring to anything in the record that might arguably support the appeal.
- missed: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage of a section 1172.6 petition the trial court may consider the record of conviction, including jury instructions, and may deny the petition where the record establishes ineligibility as a matter of law without engaging in factfinding.
The appellate opinion: sound with gaps — The court reached the correct result: a defendant convicted as the actual killer, with no felony-murder or imputed-malice instructions and a personal-discharge finding, is ineligible for section 1172.6 relief as a matter of law, and the petition cannot be used to relitigate instructional or self-defense claims. However, the opinion does not cite People v. Lewis, the controlling authority on the use of the record of conviction at the prima facie stage, and does not directly answer Harper's argument that the form petition's allegations alone suffice, nor does it state a standard of review.
Opinion
Filed 5/3/23 P. v. Harper 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, D081034
Plaintiff and Respondent, v. (Super. Ct. No. SCN308840)
JULIE ELIZABETH HARPER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed. Julie Elizabeth Harper, in pro. per.; and Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2015, a jury convicted Julie Elizabeth Harper of second degree murder (Pen. Code,1 § 187, subd. (a)) and found true an allegation that she personally discharged a firearm causing death or great bodily injury 1 All further statutory references are to the Penal Code. (§§ 12022.53, subd. (d) & 12022.5, subd. (a)). Harper was sentenced to an indeterminate term of 40 years to life in prison. Harper appealed and this court affirmed the judgment in an unpublished opinion. (People v. Harper (Jan. 5, 2018, D069632).) In 2022, Harper filed a petition for resentencing under section 1170.95 (now renumbered section 1172.6). The court appointed counsel, received briefing, reviewed the record of conviction, and held a hearing. The court found Harper had not presented a prima facie case for relief under section 1172.6 and therefore denied the petition. The court stated: “[T]he Court has examined the record of conviction in this case, which includes the jury instructions that have been given. The Court did not instruct the jury on any felony murder rule under the natural and probable consequences doctrine, or any other theory of which malice was imputed to [appellant] based on solely on [sic] her participation in the crime.
“The Court also has reviewed the verdict forms. The Court is looking at the verdict form that was filed on October 8, 2015 in which the defendant, [appellant], was found guilty of murder in the second degree, which also included findings pursuant to [section] 12022.53(d). And I’ll quote from that allegation which states ‘And we the jury further find that in the commission or attempted commission of the above offense the defendant personally and intentionally discharged a firearm, To wit: A handgun, and proximately caused the death to a person within the meaning of Penal Code section 12022.53(d).’ That’s the finding by the jury in this case, that [appellant] personally discharged a firearm.
“The jury also found true the allegation pursuant to [section] 12022.5(a). And reading from the verdict forms it states, ‘And we the jury find that in the commission or attempted commission of the above offense the defendant 2 personally used a firearm, To wit: A handgun. Within the meaning of Penal Code Section 12022.5(a).’
“So based on the verdict forms that were given to the jury and the findings that they returned and the jury instructions, which notably do not contain any felony murder-type theory, the record is clear that the defendant is not entitled to the relief under the statute. So therefore the petition is denied.”
Harper filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to exercise its discretion and independently review the record for error as we would in an appeal under People v. Wende (1979) 25 Cal.3d 436 (Wende). We grant the request and will review the record consistent with Wende. We offered Harper the opportunity to file her own brief on appeal consistent with Delgadillo. Harper has responded with a supplemental brief. We will discuss her brief later in this opinion. In this case, Harper was charged and convicted as the sole perpetrator of the offense, i.e., that she was the actual killer. As such, the jury was not instructed on the felony murder rule or on the principle of liability as an aider and abettor under the natural and probable consequences doctrine. We set forth a summary of the facts of the offense in our previous appeal and will therefore omit another statement of facts. DISCUSSION As we have noted, appellate counsel has filed a brief under Delgadillo and asks the court to independently review the record for error. To assist the court, and in compliance with Anders v. California (1967) 386 U.S. 738 3 (Anders), counsel has identified two issues which were considered in evaluating the potential merits of this appeal: 1. Whether Harper established facts sufficient to show a prima facie case for relief such that the court erred by denying the petition without first issuing an order to show cause. 2. Whether the denial of the petition was prejudicial error. In her supplemental brief, Harper contends her recital of the standard allegations in the form petition is sufficient to establish a prima facie case for relief. Thus, she argues the court erred in denying the petition without issuing an order to show cause. She also complains about the jury instructions at trial. Fundamentally, Harper contends she acted in self- defense and implicitly should have been convicted of manslaughter. She argues that even though she shot and killed the victim, such act does not demonstrate implied malice in this case. We understand Harper’s desire to avoid the murder conviction based on her claim of self-defense, however, this appeal is from the denial of a petition seeking specific relief under a statutory process for resentencing and does not serve as a vehicle to challenge the jury instructions given at the trial. Harper was not convicted on any of the theories now excluded by Senate Bill No. 1437 or section 1172.6. Her supplemental brief has not raised any arguable issues for reversal of this particular order. We have independently reviewed the entire record as we would do in a review under Wende or Anders. We have not discovered any arguable issues for reversal of this order on appeal. Competent counsel has represented Harper on this appeal.
4 DISPOSITION The order denying Harper’s petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
KELETY, J.
Cites, in this corpus
- People v. Delgadillo S266305 · 2022-12-19
- People v. Wende Crim. 20851 · 1979-10-12