People v. Landis CA4/2

Opinion

Filed 7/13/23 P. v. Landis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E080146

v. (Super.Ct.No. CR59243)

RICHARD HAROLD LANDIS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge.

(Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed.

Richard Harold Landis, in pro. per.; Johanna Pirko, under appointment by the

Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant Richard Harold Landis appeals the Riverside County

Superior Court’s denial of his Penal Code section 1172.6 petition for resentencing.1 We

will affirm.

BACKGROUND

In 1995, a jury convicted defendant of first degree murder of Karen Beloz, who

was found strangled and wrapped in a blanket in the backseat of a car that had been

doused with gasoline and set on fire. (Pen. Code, § 187, count 1.) It also convicted him

of a felony violation of Vehicle Code section 2800.2 (driving in willful disregard for the

safety of persons or property while fleeing from a pursuing police officer, count 3), and

misdemeanor reckless driving in violation of Vehicle Code section 23103,

subdivision (a), count 4. The trial court found true the allegations defendant had suffered

a Penal Code section 667.5, subdivision (b), prior prison term as well as two prior

convictions for serious and violent felonies coming under the three strikes law (§ 667).

(People v. Landis (Jan. 24, 1997, E016856) [nonpub. opn.] (Landis I).)

In August 1995, the court sentenced defendant to a total indeterminate sentence of

101 years to life. The sentence consisted of 75 years to life for the first degree murder

conviction, a term of 25 years to life under the three strikes law for the Vehicle Code

section 2800.2 felony violation, and a one-year term for the prison prior stemming from a

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 provision by its new numbering. All further statutory references are to the Penal Code.

2 vehicle theft in 1989. Defendant appealed the judgment and we affirmed. (Landis I,

supra, E016856.)

In May 2022, we affirmed the trial court’s denial of defendant’s petition for recall

of his sentence pursuant to section 1170.126, which, by its terms, does not apply to

persons convicted of any homicide offense. We also denied his request to remand his

case for compliance with the procedures for recall and resentencing pursuant to section

1171.1, which had rendered legally invalid his prison prior enhancement, finding it would

undermine the Legislature’s purpose for establishing staggered deadlines for

implementation of that statute.

In July 2022, defendant filed a resentencing petition pursuant to section 1172.6.

The People and defendant’s counsel agreed defendant was the actual killer, that the jury

was not instructed on either the felony murder or natural and probable consequences

theory, and defendant was not eligible for resentencing relief. The court denied the

petition. Defendant timely noticed this appeal from the denial.

DISCUSSION

On appeal, defendant’s appointed appellate counsel filed an opening brief that sets

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

Counsel notes we have discretion under People v. Delgadillo (2022) 14 Cal.5th 216 to

conduct an independent review of the record in appeals from denials of section 1172.6

petitions, and states she considered whether the trial court erred “to the extent the court

denied the petition based in part on [the People’s] representation that [defendant] was

3 ineligible for relief” because our opinion stated that defendant strangled and burned the

victim.

Upon receipt of the opening brief, we notified defendant (i) that his counsel had

filed a brief stating she had not found an arguable issue, (ii) that this court is not required

to conduct an independent review of the record but may exercise its discretion to do so,

and (iii) we invited him to file any arguments he deemed necessary.

In his handwritten letter submitted in response to our invitation, defendant raises

two points in support of his claim. He argues section 1172.6 states that a hearing on a

petition should take place “if there is any doubt of petitioner’s innocence” and concludes

that he should either be granted a new trial or be released by this court in the interests of

justice. In a related argument, defendant posits that former section 1170.03 (which was

amended and renumbered to § 1172.1 by Stats 2022, ch. 58 § 9 (Assem. Bill No. 200),

eff. June 30, 2022, and will be referred to by its current number) not only “clarifies” the

court’s duty to determine whether defendant could presently be convicted of murder but

also provides the court an opportunity to consider a defendant’s mitigating factors.

In support of his claims, defendant expresses a variety of concerns about his trial

and conviction: no motive was established, his ex-wife had made threats against the

victim and had motive to kill her, there was no DNA or blood evidence, and the statement

of the only witness against him was obtained by the detectives by means of coercion.

Defendant did not raise those issues in his appeal from the judgment (Landis I, supra,

E016856.), and the time for seeking review of them has long since passed. (Cal. Rules of

4 Court, rule 8.308(a) [notice of appeal must be filed within 60 days after rendition of the

judgment or the making of the order being appealed].)

Defendant also asks this court to resentence him, suggesting a reduction of his

charge to manslaughter and time served. He points to his conclusion that his ex-wife

committed the murder, and notes as well that he suffers from several serious physical

maladies, he has a large family that provides a huge support system, that (to his credit) he

has completed a number of programs, has letters of recommendation from law

enforcement personnel, and has proven to the Department of Corrections and the public

that he is not a danger to society. Defendant’s efforts to obtain resentencing must be

directed to the superior court in the county in which defendant was sentenced (§ 1172.1,

subd. (a)) and, to the extent, if any, defendant may be eligible for elderly or medical

parole, those efforts must be directed to the California Department of Corrections and

Rehabilitation.

DISPOSITION

The order denying defendant’s petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J. We concur:

McKINSTER J.

RAPHAEL J.