People v. Alhimidi CA4/1

California Court of Appeal · D080865 · 2023-07-17 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCE325289
Trial judge: Frank L. Birchak
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), O'Rourke, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:32Z · confidence high

The trial court denied Alhimidi's petition for resentencing under Penal Code section 1172.6, determining he was ineligible because he was the actual killer who personally used a deadly weapon and the jury was not instructed on alternative theories of liability. The Court of Appeal affirmed the denial, finding no error 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 1172.6 without issuance of an order to show cause or evidentiary hearing. “The court found Alhimidi was ineligible for resentencing under section 1172.6. Accordingly, the court denied the petition without issuing an order to show cause or holding an evidentiary hearing.”	de novo	correct	agree with court The appellate court affirmed the trial court's decision. The court relied on the trial court's factual findings that Alhimidi was the actual killer, personally used a deadly weapon, and that the jury was not instructed on aiding and abetting, felony murder, or natural and probable consequences. Under section 1172.6, a petitioner is ineligible for resentencing if they were the actual killer who personally used a deadly weapon and were not convicted under a theory of liability that has since been abolished or modified (such as felony murder or natural and probable consequences). Since the jury was not instructed on these theories, Alhimidi's conviction rests solely on his direct liability as the actual killer, making him ineligible for relief under the statute. The appellate court's independent review under Wende and Anders confirmed no error.

Authorities

relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appointed appellate counsel to file a brief indicating no meritorious issues have been identified, requesting the court to independently review the record.
relied: People v. Wende (1979) 25 Cal.3d 436 — Requires the appellate court to conduct an independent review of the record when appointed counsel identifies no meritorious issues on appeal.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any potentially meritorious issues and to request the court's independent review of the record.

The appellate opinion: sound — The opinion is procedurally sound. It correctly applies the Wende/Anders framework for reviewing an appeal where counsel identifies no meritorious issues. The court's independent review of the record supports the trial court's determination that the petitioner was ineligible for resentencing under section 1172.6 based on the specific factual findings regarding his role as the actual killer and the absence of alternative jury instructions.

How this analysis was made · dispute it

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

The trial court denied Kassim Alhimidi's Penal Code section 1172.6 resentencing petition at the prima facie stage, finding from the record of conviction that he was prosecuted and convicted as the actual killer who personally used a deadly weapon and that the jury was never instructed on aiding and abetting, felony murder, or natural and probable consequences. On appeal, counsel filed a Delgadillo/Wende brief, the defendant's supplemental brief raised only claims of innocence and original-trial error, 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 resentencing petition without issuing an order to show cause or holding an evidentiary hearing, on the ground that the defendant was the actual killer and the jury was not instructed on any imputed-malice theory “The court found Alhimidi was ineligible for resentencing under section 1172.6.”	unclear	correct	agree with court Section 1172.6 relief is available only to defendants convicted under felony murder, natural and probable consequences, or another theory imputing malice. A record of conviction showing the defendant was tried solely as the actual killer, with no instructions on any vicarious theory, establishes ineligibility as a matter of law at the prima facie stage, which is consistent with People v. Lewis permitting courts to consult the record of conviction to refute allegations that are conclusively rebutted. The appellate court did not state a standard of review but conducted an independent Delgadillo/Wende review and correctly noted the supplemental brief raised nothing relevant to the petition.

Authorities

relied: People v. Delgadillo (2022) 14 Cal.5th 216 — In an appeal from denial of a section 1172.6 petition where appointed counsel finds no arguable issues, the Court of Appeal is not required to conduct Wende review but may do so in its discretion, and must evaluate any specific arguments raised in the defendant's supplemental brief.
relied: People v. Wende (1979) 25 Cal.3d 436 — Procedure for independent appellate review of the record when appointed counsel identifies no arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues should identify anything in the record that might arguably support the appeal to assist the court's review.
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 conclusively establishes ineligibility as a matter of law without factfinding or weighing of evidence.

The appellate opinion: sound with gaps — The result is correct because a defendant convicted as the sole actual killer, with no imputed-malice instructions given, is ineligible for section 1172.6 relief as a matter of law, and the court properly addressed the defendant's supplemental brief as Delgadillo requires. The opinion, however, does not cite People v. Lewis or explain the governing prima facie standard, and it omits the underlying facts and instruction history by reference to a prior unpublished opinion, so the reasoning is thin even if defensible.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 7/17/23 P. v. Alhimidi 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, D080865

Plaintiff and Respondent, v. (Super. Ct. No. SCE325289)

KASSIM ALHIMIDI,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Frank L. Birchak, Judge. Affirmed. Kassim Alhimidi, in pro. per.; and Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2014, a jury convicted Kassim Alhimidi of first degree murder (Pen.

Code,1 § 187, subd. (a)) and found he had personally used a deadly weapon in the commission of the offense (§ 12022, subd. (b)(1)). Alhimidi was sentenced to an indeterminate term of 26 years to life in prison.

1 All further statutory references are to the Penal Code. Alhimidi appealed and this court affirmed the judgment in an unpublished opinion. (People v. Alhimidi (Nov. 24, 2015, D066515).) In 2022, Alhimidi filed a petition for resentencing under section 1172.6. The trial court appointed counsel, received briefing, reviewed the record of conviction, and held a hearing. The court determined Alhimidi was prosecuted as the actual killer of the victim and that he personally used a deadly weapon to commit the offense. The court also determined the jury was not instructed on aiding and abetting, felony murder or natural and probable consequences. The court found Alhimidi was ineligible for resentencing under section 1172.6. Accordingly, the court denied the petition without issuing an order to show cause or holding an evidentiary hearing. Alhimidi 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 meritorious issues for reversal on appeal. Counsel asks this court to exercise its discretion to independently review the record for error consistent with the procedure described in People v. Wende (1979) 25 Cal.3d 436 (Wende). We notified Alhimidi of his right to file his own brief on appeal. He has responded by filing a brief which does not discuss any issues relevant to the denial of the petition for resentencing under section 1172.6.

We will discuss the supplemental brief later in this opinion.2 DISCUSSION As we have noted, appellate counsel asks the court to independently review the record for error. To assist the court in its review of the record, and 2 The facts of the offense are discussed at length in our prior opinion. We see no purpose in repeating that discussion here. 2 in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified a possible issue that was considered in evaluating the potential merits of this appeal: Whether the court erred in denying the petition for resentencing without issuing an order to show cause and holding an evidentiary hearing. In his supplemental brief, Alhimidi does not address any issue relevant to the question of the propriety of the denial of his petition for resentencing. His discussion is focused entirely on his claim of innocence and alleged errors in the conduct of the original trial. This appeal does not relate to the trial on guilt which was resolved in our prior appeal. Alhimidi has not identified any potentially meritorious issues relevant to this appeal. We have reviewed the record consistent with Wende and Anders. We have not discovered any meritorious issues for reversal on appeal. DISPOSITION The order denying Alhimidi’s petition for resentencing under section 1172.6 is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

IRION, J.

Cites, in this corpus

People v. Delgadillo S266305 · 2022-12-19
People v. Wende Crim. 20851 · 1979-10-12