People v. Orange CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCN165993
- Trial judge
- Runston G. Maino
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Michele M. Castillo
Analysis
The trial court denied Eugene Orange's petition for resentencing under Penal Code section 1172.6, determining he was ineligible for relief because the record established he was the actual killer and sole perpetrator of the murder. The Court of Appeal affirmed the denial, finding no error in the trial court's determination and rejecting Orange's supplemental arguments as irrelevant to the current appeal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.6“The court determined Orange was the actual killer and was therefore ineligible for relief under section 1172.6.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appellate review when appointed counsel files a brief indicating no meritorious issues, requiring the court to conduct an independent review of the record.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the standard for independent appellate review of the record when counsel cannot identify meritorious issues, ensuring a fair appeal.
The appellate opinion: sound — The opinion is sound because it correctly applies the standard of review for a section 1172.6 petition, noting that the trial court's finding that the defendant was the actual killer is supported by the record (lack of aiding and abetting instructions). It also correctly dismisses the appellant's supplemental brief as irrelevant because it challenges the original judgment, which is final and not the subject of this appeal.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court denied Eugene Orange's Penal Code section 1172.6 resentencing petition at the prima facie stage, finding from the record of conviction that the jury was not instructed on aiding and abetting, natural and probable consequences, or felony murder and that Orange was the actual killer. On appeal, after appointed counsel filed a Delgadillo brief and Orange filed a supplemental brief attacking only his original 2004 trial, the Court of Appeal independently reviewed the record, 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, on the ground that Orange was the sole perpetrator and actual killer and the jury was never instructed on any theory of imputed malice“The record demonstrated the jury was not instructed on aiding and abetting, natural and probable consequences or felony murder.” | unclear | correct | agree with court Where the jury instructions show the only theory presented was that defendant personally killed with malice, the record of conviction conclusively establishes ineligibility under section 1172.6, and denial at the prima facie stage is proper. The opinion does not state a standard of review or cite People v. Lewis, and its phrasing that the record 'supports the trial court's finding' sounds like factfinding, which Lewis forbids at this stage; but because the conclusion rests on the absence of instructions on imputed-malice theories rather than on weighing evidence, the result is correct. |
Evidentiary rulings and search-and-seizure claims from the original 2004 trial raised in Orange's supplemental brief“None of those potential issues is relevant to this appeal. The original judgment has been subject to direct appeal and is now a final judgment.” | unclear | not reached | agree with court An appeal from an order denying a section 1172.6 petition does not reopen the long-final judgment of conviction; claims of trial error were cognizable only on the 2006 direct appeal. The court properly declined to consider them while still complying with Delgadillo's requirement that it evaluate the specific arguments in a defendant's supplemental brief. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende review is not constitutionally required in appeals from section 1172.6 denials, but the appellate court may exercise discretion to independently review the record and must address the issues raised in any supplemental brief filed by the defendant.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Procedure for independent appellate review of the record when appointed counsel identifies no arguable issues on direct appeal.
- missed: People v. Lewis (2021) 11 Cal.4th 952 — At the section 1172.6 prima facie stage the court may consult the record of conviction, including jury instructions, but may not engage in factfinding or weigh evidence; a petition may be denied only where the record conclusively refutes the petitioner's allegations as a matter of law.
The appellate opinion: sound with gaps — The result is correct because the jury instructions show Orange was convicted solely as the actual killer with malice, which places him outside section 1172.6, and the supplemental brief raised only claims about the final 2004 judgment that are not cognizable in this appeal. The opinion, however, states no standard of review, does not cite People v. Lewis governing the prima facie inquiry, and uses language ('the record supports the trial court's finding') that could be read as endorsing factfinding at a stage where it is prohibited.
Opinion
Filed 8/30/23 P. v. Orange 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, D081522
Plaintiff and Respondent, v. (Super. Ct. No. SCN165993)
EUGENE ORANGE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed. Eugene Orange, in pro. per.; and Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In 2004, a jury convicted Eugene Orange1 of first degree murder (Pen.
Code,2 § 187, subd. (a)) and found he personally used a deadly weapon (knife) in the commission of the offense (§ 12022, subd. (b)(1)). The court found true 1 Appellant is also known as Eugene Kidd.
2 All further statutory references are to the Penal Code. two serious felony prior convictions and two strike priors. The court sentenced Orange to an indeterminate term of 100 years to life, plus 11 years. Orange appealed his conviction, and this court affirmed the judgment in an unpublished opinion. (People v. Orange (Apr. 21, 2006, D045936).) In 2022, Orange filed a form petition for resentencing under section 1170.95 (now renumbered section 1172.6). The court appointed counsel for Orange, received briefing, reviewed the record of conviction, and held a hearing. At the hearing to determine if Orange had stated a prima facie basis for resentencing, the court concluded Orange was the sole perpetrator of this offense. The record demonstrated the jury was not instructed on aiding and abetting, natural and probable consequences or felony murder. The court determined Orange was the actual killer and was therefore ineligible for relief under section 1172.6. The court denied the petition without issuing an order to show cause or holding an evidentiary hearing. Orange 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 conduct an independent review of the record for error, similar to the process used in cases under People v. Wende (1979) 25 Cal.3d 436 (Wende). We notified Orange of his right to file his own brief on appeal. He has responded by filing his own brief on appeal. We will discuss the supplemental brief later in this opinion. The facts of the underlying offense are discussed in our previous opinion. We will not repeat the discussion of the facts in the present opinion.
2 DISCUSSION As we have noted, appellate counsel has filed a Delgadillo brief and asks the court to independently review the record for error. We have reviewed the record in the same fashion as we would do in a Wende review. We have not discovered any potentially meritorious issues that might lead to reversal of the order currently under review. The record supports the trial court’s finding that Orange was the actual killer who acted alone in a willful, premeditated murder with actual malice. Thus, nothing in this record would bring Orange into the range of persons who might be eligible for relief under section 1172.6. We turn next to Orange’s supplemental brief. That submission does not even address the order in this case. The focus of the supplemental brief is the original trial. Orange contends the court abused its discretion in a number of evidentiary rulings. He complains certain evidence was the product of an unlawful search and seizure. None of those potential issues is relevant to this appeal. The original judgment has been subject to direct appeal and is now a final judgment. This is not an appeal from such judgment. As we have stated, our review of the record of this appeal has not identified any potentially meritorious issues for reversal on appeal. Orange has been represented by competent counsel on this appeal.
3 DISPOSITION The order denying Orange’s petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
CASTILLO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12