THE PEOPLE, Plaintiff and Respondent, v. MARCUS HENSON, Defendant and Appellant.
C096757
(Super. Ct. No. STK-CR-FECOD-2015-0007347)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
Filed 2/23/23
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
FACTUAL AND PROCEDURAL BACKGROUND
An indictment filed on August 20, 2015, charged defendant with two counts of attempted murder of two police officers (
The basic facts of the case are that defendant and his fellow gang members fired 26 shots at an unmarked police car containing two Stockton police officers in plain
At trial, the trial court instructed the jury that defendant had to have the intent to kill to commit attempted murder and on the kill zone theory of liability (requiring the person to have the intent to kill the specific victim and everyone else in that particular zone of harm), but did not instruct the jury on the natural and probable consequences theory of liability.
The jury found defendant guilty on all counts and found all of the enhancements true. The trial court sentenced defendant to 50 years eight months to life.
Defendant appealed and we reversed and remanded two of the attempted murder counts based on instructional error (counts 1 & 3), vacated three other convictions and their enhancements (counts 4, 7 & 8), and remanded the matter for resentencing and a youth offender parole hearing.
On remand, the trial court sentenced defendant to 15 years to life on the attempted murder count 2 (
Defendant filed a petition for resentencing under section 1172.6, alleging his remaining attempted murder conviction was based on the natural and probable consequences doctrine, which now could not support conviction due to the change in the law. The prosecution opposed that motion on the grounds the trial court instructed the jury under the kill zone theory, which requires proof of intent to kill, and did not instruct the jury on the natural and probable consequences doctrine.
The trial court appointed counsel, held a hearing, and denied the petition, finding defendant was ineligible for resentencing.
Defendant timely appealed.
DISCUSSION
Appointed counsel for defendant filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal in accordance with People v. Wende, supra, 25 Cal.3d 436. Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and defendant has not filed a supplemental brief.
The protections afforded by Wende and the United States Supreme Court‘s decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] do not apply to an appeal from a postconviction denial of a section 1172.6 petition. (People v. Delgadillo (2022) 14 Cal.5th 216.) The Delgadillo court laid out a framework for resolving appeals in which counsel finds no arguable issues as follows: “(1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel‘s brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter.” (Id. at pp. 231-232.) If defendant files a brief, we are required to “evaluate the specific arguments presented in that brief and to issue a written opinion.” (Id. at p. 232.) If defendant does not file a brief, the court may dismiss the appeal, with notice to defendant. (Ibid.) The court may also exercise its discretion and choose to conduct an independent review. (Ibid.)
In Delgadillo, the notice given by counsel and the appellate court advised defendant that counsel had filed a Wende brief, directed counsel to provide defendant with the brief and the record, and informed defendant he could file a supplemental brief
Appellate counsel complied with his obligations, defendant was advised of his right to file a supplemental brief, but did not do so, and we have undertaken an examination of the entire record. We find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
KRAUSE, J.
We concur:
MAURO, Acting P. J.
McADAM, J. Pro Tem.*
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.