Filed 8/29/22 P. v. Jackson CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079096
v. (Super. Ct. No. RIF097839)
BAILEY LAMAR JACKSON, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Dismissed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 I.
INTRODUCTION
Defendant and appellant Bailey Lamar Jackson, Jr. appeals from a postjudgment 1 order denying his Penal Code section 1170.95 petition for resentencing under the
procedures established by Senate Bill Nos. 775 and 1437. Counsel has filed a brief under
the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California
(1967) 386 U.S. 738 (Anders), requesting this court to conduct an independent review of
the record. In addition, defendant has had an opportunity to file a supplemental brief
with this court and has not done so. Because defendant is not entitled to Wende/Anders
review from denial of the challenged postjudgment motion, and neither he nor his counsel
has raised any claim of error in the denial, we dismiss his appeal as abandoned.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2004, a jury convicted defendant of first degree murder (§ 187, subd.
(a)), first degree burglary (§ 459), and first degree robbery (§§ 211, 215, subd. (a)) of
G.M. The jury found true the special circumstance allegations of robbery murder and
burglary murder (§§ 190.2, subd. (a)(17)(A), (G)). Defendant was also convicted of
attempted murder (§§ 187, subd. (a), 664, subd. (a)), first degree burglary (§ 459), first
1 That section has since been renumbered as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.) However, because that change was nonsubstantive and it occurred after briefing in this case was complete, we will cite to Penal Code section 1170.95 for ease of reference. All further statutory references are to the Penal Code. All future statutory references are to the Penal Code unless otherwise stated.
2 degree robbery (§§ 211, 215, subd. (a)), torture (§ 206), forcible rape (§ 261, subd.
(a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), and sexual penetration with a
foreign object on an unconscious person (§ 289, subd. (d)) against M.M. The jury found
true allegations that defendant personally inflicted great bodily injury on a person 70
years of age or older in the commission of the attempted murder and torture (§§ 12022.7,
subd. (c), 1192.7, subd. (c)(8)). In connection with the rape and forcible oral copulation
charges, the jury found true that defendant inflicted aggravated mayhem or torture on
M.M. (§ 667.61, subd. (d)(3)), that he entered her house with the intent to commit a
violent sexual offense (§ 667.61, subds. (c), (d)(4)), and that he personally inflicted great
bodily injury on M.M. (§ 667.61, former subd. (e)(3)). The jury also found that
defendant had been convicted of two prior prison offenses (§ 667.5, subd. (b)), two
serious prior felonies (§ 667, subd. (a)), and two serious or violent felonies within the
meaning of the “Three Strikes” law (§§ 667, subds. (c), (d)(2), (e)(2)(A), 1170.12, subd.
(c)(2)(A)). (People v. Jackson (2016) 1 Cal.5th 269, 283 (Jackson I).)
The jury was unable to reach a penalty verdict. A new jury was empaneled and
the penalty phase was retried, resulting in a verdict of death. The trial court denied the
automatic motion to modify the penalty, sentenced defendant to death for the count of
murder, and imposed a sentence of 212 years to life on the remaining counts. (Jackson I,
supra, 1 Cal.5th at p. 283.) Due to the death sentence, the matter was automatically
appealed to the California Supreme Court. (Cal. Const. art. VI, § 11, subd. (a); § 1239,
subd. (b).)
3 The California Supreme Court’s opinion in Jackson I, supra, 1 Cal.5th 269
recounted the factual background of the case. The factual background established that
defendant acted alone, was the actual killer of G.M., and the sole person who attempted
to kill M.M. (Id. at pp. 284-298.) The Supreme Court affirmed the judgment, but
remanded the matter to the trial court to recalculate the noncapital portion of defendant’s
sentence. (Id. at pp. 284, 375.)
On January 10, 2022, defendant in propria persona filed a petition for resentencing
pursuant to section 1170.95.
On May 27, 2022, following a hearing, the trial court denied defendant’s petition
for resentencing. Defendant timely appealed.
III.
DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the
authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a
statement of the case, a summary of the procedural background and potential arguable
issues, and requesting this court to conduct an independent review of the record . Counsel
has raised the issues of whether defendant stated a prima facie case for eligibility and
whether defendant is entitled to resentencing on his murder and attempted murder
convictions.
4 We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so. Thus, no claim of error has been raised.
Our high court is currently considering whether an appellate court must conduct an
independent review of the record when counsel files a Wende brief after the trial court
denies a petition for resentencing under section 1170.95. (People v. Delgadillo, rev.
granted Feb. 17, 2021, S266305; see Cal. Rules of Court, rule 8.512(d)(2).) Recent Court
of Appeal cases have consistently held that we are not required to conduct such a review
and may dismiss an appeal as abandoned if the defendant does not file a supplemental
brief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1031-1032, 1039-1040, review
granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review
granted May 12, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1131,
review granted Mar. 17, 2021, S266853.) Some cases have explained that we have
discretion to review the record independently for arguable issues, either where an initial
review does not show the defendant is obviously ineligible for relief (such as when the
defendant was convicted on a theory he was the actual killer) or as a routine matter. (See
People v. Gallo (2020) 57 Cal.App.5th 594, 598-599; People v. Flores (2020) 54
Cal.App.5th 266, 269-274.)
In this case, we conclude defendant is not entitled to Wende review of an order
denying his petition for resentencing under section 1170.95. Review pursuant to Wende,
or its federal constitutional counterpart Anders, is required only in the first appeal of right
Free access — add to your briefcase to read the full text and ask questions with AI
Filed 8/29/22 P. v. Jackson CA4/2 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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079096
v. (Super. Ct. No. RIF097839)
BAILEY LAMAR JACKSON, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Dismissed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 I.
INTRODUCTION
Defendant and appellant Bailey Lamar Jackson, Jr. appeals from a postjudgment 1 order denying his Penal Code section 1170.95 petition for resentencing under the
procedures established by Senate Bill Nos. 775 and 1437. Counsel has filed a brief under
the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California
(1967) 386 U.S. 738 (Anders), requesting this court to conduct an independent review of
the record. In addition, defendant has had an opportunity to file a supplemental brief
with this court and has not done so. Because defendant is not entitled to Wende/Anders
review from denial of the challenged postjudgment motion, and neither he nor his counsel
has raised any claim of error in the denial, we dismiss his appeal as abandoned.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2004, a jury convicted defendant of first degree murder (§ 187, subd.
(a)), first degree burglary (§ 459), and first degree robbery (§§ 211, 215, subd. (a)) of
G.M. The jury found true the special circumstance allegations of robbery murder and
burglary murder (§§ 190.2, subd. (a)(17)(A), (G)). Defendant was also convicted of
attempted murder (§§ 187, subd. (a), 664, subd. (a)), first degree burglary (§ 459), first
1 That section has since been renumbered as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.) However, because that change was nonsubstantive and it occurred after briefing in this case was complete, we will cite to Penal Code section 1170.95 for ease of reference. All further statutory references are to the Penal Code. All future statutory references are to the Penal Code unless otherwise stated.
2 degree robbery (§§ 211, 215, subd. (a)), torture (§ 206), forcible rape (§ 261, subd.
(a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), and sexual penetration with a
foreign object on an unconscious person (§ 289, subd. (d)) against M.M. The jury found
true allegations that defendant personally inflicted great bodily injury on a person 70
years of age or older in the commission of the attempted murder and torture (§§ 12022.7,
subd. (c), 1192.7, subd. (c)(8)). In connection with the rape and forcible oral copulation
charges, the jury found true that defendant inflicted aggravated mayhem or torture on
M.M. (§ 667.61, subd. (d)(3)), that he entered her house with the intent to commit a
violent sexual offense (§ 667.61, subds. (c), (d)(4)), and that he personally inflicted great
bodily injury on M.M. (§ 667.61, former subd. (e)(3)). The jury also found that
defendant had been convicted of two prior prison offenses (§ 667.5, subd. (b)), two
serious prior felonies (§ 667, subd. (a)), and two serious or violent felonies within the
meaning of the “Three Strikes” law (§§ 667, subds. (c), (d)(2), (e)(2)(A), 1170.12, subd.
(c)(2)(A)). (People v. Jackson (2016) 1 Cal.5th 269, 283 (Jackson I).)
The jury was unable to reach a penalty verdict. A new jury was empaneled and
the penalty phase was retried, resulting in a verdict of death. The trial court denied the
automatic motion to modify the penalty, sentenced defendant to death for the count of
murder, and imposed a sentence of 212 years to life on the remaining counts. (Jackson I,
supra, 1 Cal.5th at p. 283.) Due to the death sentence, the matter was automatically
appealed to the California Supreme Court. (Cal. Const. art. VI, § 11, subd. (a); § 1239,
subd. (b).)
3 The California Supreme Court’s opinion in Jackson I, supra, 1 Cal.5th 269
recounted the factual background of the case. The factual background established that
defendant acted alone, was the actual killer of G.M., and the sole person who attempted
to kill M.M. (Id. at pp. 284-298.) The Supreme Court affirmed the judgment, but
remanded the matter to the trial court to recalculate the noncapital portion of defendant’s
sentence. (Id. at pp. 284, 375.)
On January 10, 2022, defendant in propria persona filed a petition for resentencing
pursuant to section 1170.95.
On May 27, 2022, following a hearing, the trial court denied defendant’s petition
for resentencing. Defendant timely appealed.
III.
DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the
authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a
statement of the case, a summary of the procedural background and potential arguable
issues, and requesting this court to conduct an independent review of the record . Counsel
has raised the issues of whether defendant stated a prima facie case for eligibility and
whether defendant is entitled to resentencing on his murder and attempted murder
convictions.
4 We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so. Thus, no claim of error has been raised.
Our high court is currently considering whether an appellate court must conduct an
independent review of the record when counsel files a Wende brief after the trial court
denies a petition for resentencing under section 1170.95. (People v. Delgadillo, rev.
granted Feb. 17, 2021, S266305; see Cal. Rules of Court, rule 8.512(d)(2).) Recent Court
of Appeal cases have consistently held that we are not required to conduct such a review
and may dismiss an appeal as abandoned if the defendant does not file a supplemental
brief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1031-1032, 1039-1040, review
granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review
granted May 12, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1131,
review granted Mar. 17, 2021, S266853.) Some cases have explained that we have
discretion to review the record independently for arguable issues, either where an initial
review does not show the defendant is obviously ineligible for relief (such as when the
defendant was convicted on a theory he was the actual killer) or as a routine matter. (See
People v. Gallo (2020) 57 Cal.App.5th 594, 598-599; People v. Flores (2020) 54
Cal.App.5th 266, 269-274.)
In this case, we conclude defendant is not entitled to Wende review of an order
denying his petition for resentencing under section 1170.95. Review pursuant to Wende,
or its federal constitutional counterpart Anders, is required only in the first appeal of right
from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555;
5 Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano (2012) 211
Cal.App.4th 496, 500-501.) The constitutional right to counsel extends to the first appeal
of right, and no further. (People v. Serrano, supra, at pp. 500-501.) The appeal before
us, “although originating in a criminal context, is not a first appeal of right from a
criminal prosecution, because it is not an appeal from the judgment of conviction.” (Id.
at p. 501.) While a criminal defendant has a right to appointed counsel in an appeal from
an order after judgment affecting his substantial rights (Pen. Code, §§ 1237, 1240, subd.
(a); Gov. Code, § 15421, subd. (c)), that right is statutory, not constitutional. Thus,
defendant is not entitled to Wende review in such an appeal. (See People v. Serrano,
supra, at p. 501 [no Wende review for denial of postconviction motion to vacate guilty
plea pursuant to section 1016.5].)
Applying People v. Serrano, supra, 211 Cal.App.4th 496 here, defendant has no
right to Wende/Anders review of the denial of his section 1170.95 petition for
resentencing. Furthermore, because neither defendant nor his counsel has raised any
claim of error, and because this appeal concerns a postjudgment proceeding in which
there is no constitutional right to counsel, we will dismiss defendant’s appeal as
abandoned.
We note, however, that the result would be the same even if we were to exercise
our discretion to conduct an independent review. There is no dispute that defendant acted
alone. There is also no dispute that defendant was the actual killer of G.M. and solely
attempted to kill M.M. The trial court correctly denied defendant’s petition.
6 IV.
DISPOSITION
The appeal is dismissed as abandoned.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J.
We concur:
FIELDS J.
RAPHAEL J.