People v. Grossi CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD186014
- Trial judge
- Theodore M. Weathers
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Buchanan, Julia C. Kelety
Analysis
The trial court denied Grossi's petition for resentencing under Penal Code section 1172.6, finding him ineligible as a matter of law because he was the sole perpetrator and the jury was not instructed on felony murder or natural and probable consequences. The Court of Appeal affirmed the denial, finding no error on independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.6“The court concluded, Grossi was ineligible for resentencing under section 1172.6 and denied the petition without issuing an order to show cause and holding an evidentiary hearing.” | de novo | correct | agree with court The appellate court affirmed the denial, finding that the record of conviction established Grossi was the sole perpetrator and that the jury was not instructed on theories of liability (felony murder or natural and probable consequences) that would make him eligible for relief under section 1172.6. Because the petition was properly denied at the prima facie stage based on the record, no further proceedings were required. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appellate counsel to file a brief indicating no meritorious issues exist, requesting independent review by the court.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate courts to independently review the record for error when counsel files a Wende brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to identify potentially meritorious issues in a brief when they believe an appeal is frivolous.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record for error. It correctly identifies that the appeal is from the denial of the resentencing petition, not the original conviction, and affirms based on the record showing ineligibility.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Marc Damon Grossi's Penal Code section 1172.6 resentencing petition at the prima facie stage, finding from the record of conviction (including jury instructions that omitted natural and probable consequences and felony murder theories) that he was the sole perpetrator and actual killer and thus ineligible as a matter of law. On appeal, counsel filed a Delgadillo brief, Grossi filed a supplemental brief attacking only his original conviction, and 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, based on the record of conviction showing no instruction on natural and probable consequences or felony murder and that Grossi was the sole perpetrator and actual killer“Those jury instructions show that the jury was not instructed on either the natural and probable consequence theory or the felony murder doctrines.” | unclear | correct | agree with court Where the jury instructions in the record of conviction show the jury was never instructed on felony murder, natural and probable consequences, or any other theory of imputed malice, and the defendant was the only person charged, the record conclusively refutes the petition's allegations and the defendant is ineligible as a matter of law under section 1172.6, subdivision (c) as construed in People v. Lewis. The opinion does not articulate a standard of review or cite Lewis, but the trial court's reliance on the instructions is the kind of record-of-conviction review Lewis permits, and Grossi's supplemental brief raised only an impermissible collateral attack on the original conviction. The result is correct on the facts recited. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — In an appeal from denial of a section 1172.6 petition where counsel finds no arguable issues, the Court of Appeal is not required to conduct Wende review but must evaluate any supplemental brief the defendant files and may independently review the record in its discretion.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate court independently reviews the entire record for arguable issues when appointed counsel files a no-issues brief in a first appeal of right.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous should file a brief referring to anything in the record that might arguably support the 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, to determine whether the petition's allegations are refuted as a matter of law, but may not engage in factfinding involving the weighing of evidence or credibility determinations.
The appellate opinion: sound with gaps — The opinion reaches a defensible result because the jury instructions in the record of conviction conclusively show Grossi was not convicted under any theory of imputed malice, and his supplemental brief raised only a collateral attack on the underlying trial that is outside the scope of a section 1172.6 appeal. It is thin, however: it states no standard of review, does not cite People v. Lewis or any section 1172.6 authority governing prima facie review, and does not address whether the trial court's 'actual killer' characterization strayed into factfinding, instead resting on the instruction-based rationale alone.
Opinion
Filed 7/9/24 P. v. Grossi 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, D082957
Plaintiff and Respondent, v. (Super. Ct. No. SCD186014)
MARC DAMON GROSSI,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed. Marc Damon Grossi, in pro. per.; and Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2007, a jury convicted Marc Damon Grossi of second degree murder (Pen. Code, § 187,1 subd. (a); count 1) and felony hit and run resulting in death (Veh. Code, § 20001, subds. (a) & (b)(2); count 2).
1 All statutory references are to the Penal Code unless otherwise specified. Grossi was sentenced to an indeterminate term of 15 years to life in prison, which includes a concurrent term of three years for count 2. Grossi appealed and this court affirmed the judgment in an unpublished opinion. (People v. Grossi (Dec. 10, 2008, D050649).) In 2023, Grossi filed a petition for resentencing under section 1172.6. The court appointed counsel, received briefing, examined the record of conviction, and held a hearing. The court found Grossi was the sole perpetrator and the actual killer of the victim. The court concluded, Grossi was ineligible for resentencing under section 1172.6 and denied the petition without issuing an order to show cause and holding an evidentiary hearing. The court said: “At this time, based upon the record of conviction in this case, the Court finds that the defendant is ineligible for the relief requested as a matter of law. This finding is based upon a review of the record of conviction.
“The record of conviction includes, but is not limited to, the jury instructions which were given. Those jury instructions show that the jury was not instructed on either the natural and probable consequence theory or the felony murder doctrines.
“The defendant was convicted of second-degree murder. He was the sole individual that was charged in this case. Therefore, based upon the record of conviction solely, the Court finds that Mr. Grossi is ineligible for the relief requested.”
Grossi 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). 2 We advised Grossi he could file his own brief on appeal. He has responded with a supplemental brief. In his brief, he does not deny he was the sole perpetrator of the offenses. Instead, he challenges his original conviction after a jury trial. This appeal, however, is from the denial of his petition for resentencing under section 1172.6. It is not simply another appeal from the trial. Grossi’s submission does not raise any potentially meritorious issues for reversal of the court’s current order. DISCUSSION As we have noted counsel has filed a Delgadillo brief and asks the court to independently review the record for error. To assist the court in its review, and 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 Grossi was eligible for relief under section 1172.6. We have independently reviewed the record for error. Our review has not identified any potentially meritorious issues for reversal on appeal. Competent counsel has represented Rossi on this appeal.
3 DISPOSITION The order denying Grossi’s petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
BUCHANAN, J.
KELETY, J.
Cites, in this corpus
- People v. Delgadillo S266305 · 2022-12-19
- People v. Wende Crim. 20851 · 1979-10-12