People v. Griffin

• Court: California Court of Appeal
• Decided: November 14, 2022
• Docket: E079269
• Status: Published

Opinion

Filed 11/14/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E079269

v. (Super.Ct.No. RIF112804)

RAYMOND GRIFFIN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Louis R. Hanoian (retired

judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of

the Cal. Const.). Affirmed.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 Eight years after defendant and appellant Raymond Griffin was convicted of two

counts of murder, he petitioned the trial court for resentencing pursuant to Penal Code

section 1172.6.1 That court summarily denied his petition, and defendant appealed.

Defendant’s appointed appellate counsel filed an opening brief that does not raise

any issues. Therein, counsel acknowledges this is not defendant’s first appeal of right so

we are not required to conduct an independent review of the record to determine if it

contains any arguable issues, but he requests we exercise our discretion to do so. We

granted that request and found no issue. Accordingly, we affirm the trial court’s denial of

defendant’s petition.

BACKGROUND

In 2014, a jury found defendant guilty of various offenses, including two counts of

first-degree murder (§ 187, subd. (a)) with gang and multiple-murder special

circumstances (§ 190.2, subds. (a)(3), (a)(22)), and with enhancements for causing death

by personally and intentionally discharging a firearm (§ 12022.53(d)). The trial court

sentenced defendant to four consecutive life terms (two without possibility of parole and

two with 25-year minimum parole periods) plus seven years. In his appeal from the

judgment, defendant raised several issues, including a claim that the evidence was

insufficient to support the jury’s finding that he was the shooter. We affirmed. (People

v. Griffin (July 19, 2016, E062831) [nonpub. opn.].)

1 Section 1170.95 was renumbered as section 1172.6 without change in the text, effective June 30, 2022 (Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to the section by its new numbering. All further statutory references are to the Penal Code.

2 In 2018, the Legislature enacted Senate Bill 1437, which amended sections 188

and 189 to eliminate criminal liability for murder under the natural and probable

consequences doctrine and to limit application of the felony murder rule to those persons

who were either the actual killer, or acted with the intent to kill, or was a major

participant in the underlying felony who acted with reckless indifference to human life.

(Stats. 2018, ch. 1015, § 1, subd. (f), eff. Jan. 1, 2019.) The Legislature also added

section 1172.6, which established the procedure for defendants convicted of murder prior

to the amendments to petition the trial court to vacate their sentence and to be

resentenced if they met the following conditions: (i) they were charged in a manner that

allowed the People to proceed under a theory of felony murder or murder under the

natural and probable consequences doctrine; (ii) they were convicted of first or second

degree murder under one of those theories; and, (iii) they could not now be convicted of

first or second degree murder because of the amendments to sections 188 and 189 that

became effective on January 1, 2019.2 (§ 1172.6, subd. (a).)

In February 2022, defendant filed a petition for resentencing pursuant to section

1172.6. Upon receipt of the petition, the trial court set the matter for a status conference

and appointed counsel for defendant. Defendant was not present but was represented by

counsel at the June 24, 2022 conference. The court found defendant was ineligible for

2 In 2021, the Senate amended section 1172.6 to make clear that defendants convicted of attempted murder under the natural and probable consequences doctrine or manslaughter are entitled to seek resentencing relief. (Senate Bill No. 775; Stats. 2021, ch. 551, §§ 1-2, eff. Jan. 1, 2022.)

3 relief because he was the actual shooter, and denied the petition. Defendant noticed this

appeal.

DISCUSSION

Defendant’s appointed appellate counsel has filed an opening brief that sets forth

statements of the case and facts but does not present any issues for adjudication. He asks

this court to exercise its discretion to independently review the record on appeal pursuant

to People v. Wende (1979) 25 Cal.3d 436.

1. Availability of Wende procedures in appeals from denials of

postconviction resentencing petitions

When appointed appellate counsel files a no-issues brief in a criminal defendant’s

appeal from the judgment of conviction, the Courts of Appeal are required (i) to offer the

defendant an opportunity to submit a personal supplemental brief, (ii) to review the entire

record whether or not the defendant files a brief, and (iii) to issue a written opinion.

(People v. Kelly (2006) 40 Cal.4th 106, 118-120 (Kelly); Wende, supra, 25 Cal.3d at

pp. 441-442.) Those procedures were adopted to ensure the protection of indigent

criminal defendants’ constitutional right to effective assistance of appellate counsel, a

right that extends only to a direct appeal of the final judgment (the first appeal of right) in

a criminal case. (Kelly, supra, 40 Cal.4th at pp. 118-119.)

Although the Courts of Appeal are not required to provide Wende protections in a

postconviction appeal taken by an indigent criminal defendant from denial of a

resentencing petition, they have exercised their inherent supervisory powers to decide

4 whether and to what extent Wende procedures should be employed in those cases.

(People v. Cole (2020) 52 Cal.App.5th 1023, 1034 (Cole), review granted Oct. 14, 2020,

S264278.) Accordingly, in an effort to give defendants an opportunity to be heard and to

avoid potential claims of ineffective assistance of counsel, courts have invited defendants

to submit a supplemental brief if their appointed appellate counsel files a no-issues brief.

(People v. Scott (2020) 58 Cal.App.5th 1127, 1131 (Scott), review granted Mar. 17, 2021,

S266853.) If a defendant files a brief, the court is required to evaluate any arguments

presented and to adjudicate the appeal in a written opinion. (Kelly, supra, 40 Cal.4th at

pp. 119-120, 124; Cole, supra, 52 Cal.App.5th at p. 1040.)

Appellate courts are divided, however, with respect to how a court should exercise

its discretion where, as here, the defendant did not respond to the court’s invitation to

submit a supplemental brief. Several cases considering the issue adopted three criteria set

forth in Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27, to calibrate

what procedures are appropriate. (E.g., Cole, supra, 52 Cal.App.5th at p. 1037; People v.

Flores (2020) 54 Cal.App.5th 266, 273-274 (Flores).) Those criteria are (i) the private

interests at stake (the liberty interests of the defendant), (ii) the government’s interests

(the appellate court’s interests in making sure the trial court ruled correctly while

balancing fiscal and administrative concerns), and (iii) the risk the procedures used will

lead to erroneous decisions. (Flores, supra, at p. 274.)

Some courts weighing those criteria conclude the state’s interest in conserving

scarce judicial resources outweighs the defendants’ interest in postconviction proceedings

5 when (i) they have already been afforded all the constitutional protections in their first

appeal of right, and (ii) are represented by appointed appellate counsel who are duty-

bound to carefully review the record for error. (Cole, supra, 52 Cal.App.5th at p. 1037

[section 1172.6 resentencing petition]; People v. Figueras (2021) 61 Cal.App.5th 108,

112 [section 1172.6 resentencing petition], review granted May 12, 2021, S267870

(Figueras); People v. Serrano (2012) 211 Cal.App.4th 496, 502-503 (Serrano) [motion to

vacate conviction on grounds of no or inadequate advisement of immigrations

consequences].) They opine that, in those circumstances, there is little risk of an

erroneous appellate decision. (Ibid.)

Based on their evaluation of the criteria, those courts exercised their discretion to

adopt procedures applicable to postjudgment no-issues cases in which defendant’s first

appeal of right has already been adjudicated. They require counsel to file a brief setting

out the applicable facts and law, and to inform the court that no arguable issues were

found. (Cole, supra, 52 Cal.App.5th at p. 1038; Figueras, supra, 61 Cal.App.5th at

p. 112; Serrano, supra, 211 Cal.App.4th at p. 503.) Defendant must then be informed of

the right to file a supplemental brief either by counsel (Cole, at p. 1028 and Figueras, at

p. 112) or by the court (Serrano, at p. 503). If defendant does not submit a brief, the

court will not conduct an independent review of the record, but will simply dismiss the

appeal as abandoned without notice to defendant or his counsel alerting them of the

court’s intention to dismiss if it does not receive a supplemental brief. (Cole, at pp. 1039-

1040; Figueras, at pp. 112-113; Serrano, at pp. 503-504.)

6 In Scott, a panel of this court generally agreed with the approach adopted by

Serrano and Cole. (Scott, supra, 58 Cal.App.5th at pp. 1130-1131.) Unlike the courts in

those cases, however, Scott explained that it does not dismiss the appeals without looking

at them. (Id., at pp. 1131, 1135.) It also acknowledged that justices have discretion to

take on a case for full review and issue a written opinion (although it suggests they

should not exercise that discretion as a routine matter). (Ibid.)

Other courts have considered the three Lassiter criteria and concluded the

defendant’s liberty interests are paramount and outweigh the fiscal and administrative

burden on the state of providing Wende protections in view of the risk (even a

presumably low one) that a defendant may be unlawfully incarcerated on account of an

unreviewed meritorious issue that was overlooked by appointed appellate counsel.

(People v. Flores (2020) 54 Cal.App.5th 266, 273-274 (Flores); People v. Gallo (2020)

57 Cal.App.5th 594, 598-599 (Gallo); see, People v. Allison (2020) 55 Cal.App.5th 449,

456 (Allison) [court of appeal has the discretion to review the record in the interests of

justice], disapproved on another ground in People v. Strong (2022) 13 Cal.5th 698, 718.)

Those courts held that, although not required by law, appellate courts can and should

independently review the record on appeal when appointed appellate counsel has filed a

no-issues brief in appeals from denial of a resentencing petition regardless of whether

defendant files a supplemental brief. (Flores, at p. 274; Gallo, at p. 599; Allison, at p.

456.)

7 The issues of (i) what procedures appointed counsel and the Courts of Appeal are

to follow when counsel determines that an appeal from an order denying postconviction

relief lacks arguable merit, and (ii) whether defendants are entitled to notice of those

procedures are pending in our Supreme Court in People v. Delgadillo (Nov. 18, 2020,

B304441) [nonpub. opn], review granted, Feb. 17, 2021, S266305. Unless and until that

Court instructs us to take a different approach, we will employ the one set forth in Flores

and Gallo. That is, we will invite the defendant to file a supplemental brief and conduct

an independent review of the record. In cases in which defendant does not file a brief and

our review does not reveal an arguable issue, we will issue a short concise unpublished

opinion affirming the trial court’s decision and explaining the reason for our decision for

the benefit of defendant and counsel.

We do so because we agree the interests of justice call for exercise of caution in

adjudicating denials of resentencing petitions even if defendants’ convictions have

already been adjudicated in their first appeal of right. The amendments to sections 188

and 189 rendered illegal all convictions for murder obtained by either imputing malice to

defendants based solely on their participation in a crime or by application of the natural

and probable consequences doctrine, convictions for attempted murder obtained under

the natural and probable consequences doctrine, and convictions for manslaughter.

(§ 1172.6; Gallo, supra, 57 Cal.App.5th at pp. 598-599.)

Contrary to the suggestion in Cole, those amendments and the enactment of the

petitioning provisions in section 1172.6 are not mere ameliorative changes applicable to

8 defendants by legislative grace permitting them to undo convictions and reduce sentences

that have been already adjudicated as valid. (Cole, supra, 52 Cal.App.5th at p. 1036.)

Rather, those changes undermine adjudicated convictions as to defendants who come

within section 1172.6 as the result of the Legislature’s determination that the convictions

violated the bedrock principle of law and equity that persons should be punished for their

actions according to their level of individual culpability. (Stats. 2018, ch. 1015, § 1(d).)

Accordingly, we find the interests of justice call for an independent review of the record

as an additional layer of protection from the risk of a defendant remaining unlawfully

incarcerated because of a failure to discover a meritorious issue in his or her appeal from

the denial of their section 1172.6 resentencing petition.

No doubt the risk of an erroneous decision is reduced by appointed appellate

counsel’s review of the record. The fact remains, however, that even very dedicated and

highly skilled counsel overlook potentially meritorious issues and errors. For example,

we regularly request parties to brief an issue not addressed in their briefs and it is

commonplace to find counsel have overlooked errors in abstracts of judgments. The risk

of not identifying an issue is increased where, as here, amendments to existing provisions

and enactment of a new statute give rise to novel and often complex issues unfamiliar to

counsel. (E.g., Allison, supra, 55 Cal.App.5th at p. 456 [independent review in interests

of justice revealed arguable issue].)

While we recognize that providing a Wende-like review in appeals from denials of

section 1172.6 petitions is not without expense, we agree with the observation in Flores

9 that the fiscal and administrative burdens on the courts are modest. (Flores, 54

Cal.App.5th at p. 274; accord, Gallo, supra, 57 Cal.App.5th at pp. 598-599.) Unlike a

Wende review in a criminal defendant’s first appeal of right, which requires an extensive

search for a wide range of potential errors, our independent review of the record in an

appeal from denial of a resentencing petition is focused on whether a defendant whose

appeal from the judgment was previously adjudicated could presently be convicted of

murder or attempted murder under the amendments to sections 188 and 189.

Our approach also furthers the interests of justice and protects the liberty interests

of criminal defendants by not deeming their appeal abandoned when they do not file a

supplemental brief. When appointed appellate counsel file no-issue briefs in appeals

from criminal proceedings, we issue a “Wende order” to defendants alerting them that (i)

their counsel has filed a brief stating no arguable issues can be found, and (ii) they are

granted 30 days to file any supplemental brief they deem necessary.

We recognize there are any number of reasons why a defendant may not respond

to that order. For example, they may not have received it (or not received it in time to

respond) because they have been relocated or they were not receiving mail due to

disruptions within the prison. It may be the defendant cannot read and comprehend the

import of the notice because of language barriers, illiteracy or cognitive difficulties.

Some defendants may simply not have the confidence or competence to fashion a

response. And, even if defendants receive the order and understand it, they may see no

10 need to respond because they anticipate the independent review by the court requested by

counsel will reveal any potentially meritorious issue that counsel may have overlooked.

2. Our independent review of the record

Here, we offered defendant an opportunity to file a personal supplemental brief,

which he has not done. Pursuant to the mandate of Kelly, supra, 40 Cal.4th 106, and in

keeping with Gallo, supra, 57 Cal.App.5th 594, we have independently reviewed the

record for potential error and find no arguable issues.

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PUBLICATION RAMIREZ P. J. We concur:

McKINSTER J.

MILLER J.