People v. Green CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of Riverside County · No. INF1502142
- Trial judge
- John D. Molloy
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Buchanan, Michele M. Castillo
Analysis
The trial court denied Green's petition for resentencing under Penal Code section 1172.6, finding him ineligible because he was prosecuted as a direct aider and abettor and the jury was not instructed on the natural and probable consequences theory. The Court of Appeal affirmed the denial after an independent review of the record pursuant to People v. Wende and People v. Delgadillo.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.6“Based on the jury instructions and the agreement of the parties, the court found Green was not eligible for resentencing under section 1172.6.” | de novo | correct | agree with court The appellate court affirmed the trial court's decision, finding no error in the conclusion that Green was ineligible for resentencing under section 1172.6 because he was convicted as a direct aider and abettor, not under the natural and probable consequences doctrine. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appointed appellate counsel to file a brief identifying potentially meritorious issues when they cannot find any, requesting independent review by the court.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires the Court of Appeal to independently review the record for error when appointed counsel files a Wende brief stating no meritorious issues were found.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any potentially meritorious issues and to request leave to withdraw, allowing the court to independently review the record.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Delgadillo framework for reviewing a case where appointed counsel finds no meritorious issues. The court independently reviewed the record and affirmed the trial court's denial of the resentencing petition, which is consistent with the legal standard that section 1172.6 relief is unavailable to defendants convicted as direct aiders and abettors.
How this analysis was made · dispute it
unusual dispositionThe Riverside County Superior Court denied Christopher Green's Penal Code section 1172.6 resentencing petition at the prima facie stage without issuing an order to show cause, finding him ineligible because the jury was not instructed on the natural and probable consequences theory and he was prosecuted as a direct aider and abettor of premeditated attempted murder. On appeal, appointed counsel filed a Delgadillo brief, Green filed a one-page supplemental brief attacking the sufficiency of the trial evidence, and the Court of Appeal independently reviewed the record, found no arguable issue, 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 (no natural and probable consequences instruction) and the parties' agreement that Green was prosecuted as a direct aider and abettor.“Based on the jury instructions and the agreement of the parties, the court found Green was not eligible for resentencing under section 1172.6.” | unclear | correct | agree with court Where the record of conviction shows the jury was never instructed on natural and probable consequences, felony murder, or any other theory imputing malice, and the defendant was tried solely as a direct aider and abettor who must personally harbor intent to kill, the petitioner is ineligible for section 1172.6 relief as a matter of law, and jury instructions are a proper part of the record of conviction for the prima facie determination under People v. Lewis. Both counsel conceded the instructional point below, and Green's supplemental brief raised only a sufficiency-of-evidence challenge to his underlying convictions, which is not cognizable on appeal from a 1172.6 denial. The opinion did not state a standard of review or cite Lewis, and did not expressly resolve counsel's first flagged issue (whether a premeditation finding alone establishes ineligibility), but the second ground (absence of any imputed-malice instruction) independently supports the result. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Procedure for appointed counsel's no-issue brief on appeal from denial of a section 1172.6 petition; Wende review is not constitutionally required but the court may exercise discretion to independently review the record and must address issues raised in a defendant's supplemental brief.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Independent appellate review of the record when appointed counsel identifies no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Counsel filing a no-merit brief should identify 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 court may consult the record of conviction, including jury instructions, and may deny the petition without an order to show cause only where the record establishes ineligibility as a matter of law without factfinding; this governs the trial court's ruling but was not cited.
The appellate opinion: sound with gaps — The result is defensible because the record of conviction, as described, shows Green was tried only as a direct aider and abettor with no imputed-malice instruction, which makes him ineligible under section 1172.6 as a matter of law, and his supplemental brief raised nothing cognizable on this appeal. The opinion is conclusory, however: it cites no section 1172.6 authority such as People v. Lewis, states no standard of review, and does not expressly resolve the two issues counsel flagged or explain why Green's sufficiency-of-evidence argument fails in this posture.
Opinion
Filed 6/21/23 P. v. Green 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, D081201
Plaintiff and Respondent, v. (Super. Ct. No. INF1502142)
CHRISTOPHER JERMAINE GREEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Christopher Green, in pro. per.; and Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2016, Christopher Jermaine Green was convicted of premeditated attempted murder (Pen. Code,1 §§ 187 & 664); assault with a firearm (§ 245, subd. (a)(2)) and participation in a criminal street gang (§ 186.22, subd. (a)). Firearm and gang enhancements found true were personal use of a firearm 1 All further statutory references are to the Penal Code. during the commission of the crimes (§§ 12022.5, subd. (a), 12022.53, subd. (c), & 186.22, subd. (b)(1)). It was also determined that Green had suffered two strike prior convictions (§ 667, subds. (b)-(i)). Green was sentenced to a prison term of 69 years four months to life. In 2022, Green filed a petition for resentencing under section 1172.6 The court appointed counsel and held a hearing. At the hearing the court reviewed the jury instructions given at trial. Both counsel agreed the jury was not instructed on the natural and probable consequences theory of liability. The parties agreed Green was prosecuted as a direct aider and abettor. Based on the jury instructions and the agreement of the parties, the court found Green was not eligible for resentencing under section 1172.6. The court denied the petition without issuing an order to show cause. Green 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 potentially meritorious issues for reversal on appeal. Counsel asks the court to exercise its discretion to independently review the record for error pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We notified Green that he had a right to file his own brief on appeal. He has responded by filing a one page document criticizing the evidence introduced at his trial. He essentially challenges the sufficiency of the evidence to support his convictions. Green’s brief does not address any potential errors in the trial court’s decision to deny the current petition for resentencing. DISCUSSION As we have noted, appellate counsel has filed a brief pursuant to Delgadillo and asks us to independently review the record for error. To assist 2 the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified two possible meritorious issues: 1. Whether the trial court erred by concluding the jury’s finding the attempted murder to be willful, deliberate, and premeditated rendered Green ineligible for relief under section 1172.6. 2. Whether the court erred in finding the lack of jury instructions on the doctrine of natural and probable consequences rendered Green ineligible for resentencing under section 1172.6. We have independently reviewed the record for error consistent with Wende and Anders. We have not discovered any potentially meritorious issues for reversal on appeal. Competent counsel has represented Green on this appeal. DISPOSITION The order denying Green’s petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
BUCHANAN, J.
CASTILLO, J.
Cites, in this corpus
- People v. Delgadillo S266305 · 2022-12-19
- People v. Wende Crim. 20851 · 1979-10-12