Opinion
B328800
01-29-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BELL, Defendant and Appellant.
Christopher Love, under appointment by the Court of Appeal; Michael Bell, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA107262, William C. Ryan, Judge. Affirmed.
Christopher Love, under appointment by the Court of Appeal; Michael Bell, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CHANEY, J.
Michael Bell appeals from an order granting his petition for resentencing under Penal Code section 1172.6 but denying his request to vacate his underlying conviction in the interests of justice. His appointed appellate counsel filed a brief raising no issues and asking this court to review the record independently to determine whether there are any arguable issues pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Bell filed a supplemental brief raising issues outside the scope of an 1172.6 resentencing proceeding. Accordingly, we affirm the order.
Undesignated statutory references will be to the Penal Code.
BACKGROUND
I. Trial and First Appeal
We relate the facts from a prior appellate opinion in this matter, setting them forth only for context not for their truth.
On October 19, 1993, several Black P Stone gang members led by Bell, who had a gun in his waistband, attacked four men, including Kendall Pryor and Kerry Bell, at a gym. (Kerry Bell was no relation to appellant, and will hereafter be referred to as "Kerry" to avoid confusion.) Bell started a fight that turned into a free-for-all, during which Kerry was struck on the head with a chain and fell to the ground. Pryor was beaten by several gang members, including Bell, and was ultimately shot and killed by Kendall Mosely, one of the assailants.
Bell was charged with murder, and the information alleged that a principal was armed with a firearm and that Bell personally used a firearm. On July 31, 1995, the trial court found insufficient evidence supported the allegation that Bell personally used a firearm, and entered a judgment of acquittal on that allegation.
The jury was instructed on first degree premeditated murder (CALJIC 8.20), second degree murder (CALCRIM 8.30), direct aiding and abetting of the murder (CALJIC 3.00, 3.01), and aiding and abetting an "assault" under the natural probable consequence theory (CALJIC 3.02).
On August 7, 1995, a jury found Bell guilty of second degree murder and found true the allegation that a principal was armed with a firearm. On January 12, 1996, the court sentenced Bell to 15 years-to-life plus one year for the firearm finding.
We affirmed the conviction. (People v. Bell (Apr. 22, 1997, B099896) [nonpub. opn.].)
II. Petition for Resentencing and Second Appeal
A. Petition
On January 2, 2019, Bell petitioned the superior court for resentencing pursuant to former section 1170.95.
Relying on trial transcripts and our opinion in Bell, the court found after a hearing that the prosecution failed to prove beyond a reasonable doubt that Bell could still be convicted of murder as a direct aider and abettor because the evidence failed to show he harbored malice. The court noted that Bell was not the shooter, that only five of the dozen gang members who fought with Pryor and his friends inside the gymnasium continued the fight into the hallway where Pryor was shot, and that no evidence suggested Bell was in the hallway or participated in Pryor's beating immediately preceding his death.
The court therefore granted Bell's petition for resentencing and vacated his murder conviction and sentence.
B. Resentencing
At the resentencing hearing, the court observed that because murder had been charged generically, with no other charges, the court could select any suitable target offense for resentencing. The court redesignated the target offense as assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), found that a principal had used a weapon within the meaning of section 12022, subdivision (a), and added the uncharged allegation that Bell personally inflicted great bodily injury on Pryor within the meaning of section 12022.7, subdivision (a).
In answer to Bell's objection that it was never alleged at trial nor found by the jury that he personally inflicted great bodily injury on Pryor, the resentencing court justified its great bodily injury finding by observing that Bell had been "an aider and abettor . . . to all of it."
The court sentenced Bell to the upper term of four years, plus three years for the infliction of great bodily injury and one year for the weapon enhancement.
Bell was given credit for 9,581 actual days plus 217 days local credit for a total of 9,798 days. In 2021, Bell was released from prison and placed on parole for one year.
C. Appeal
We reversed. We held that the trial court erred in redesignating Bell's murder conviction as assault by means of force likely to produce great bodily injury and by adding allegations that a principal was personally armed with a firearm and Bell personally inflicted great bodily injury on Pryor. We directed the court to redesignate Bell's conviction as being for simple assault and resentence him accordingly. (People v. Bell (Aug. 25, 2022, B310866) [nonpub. opn.].)
III. Proceedings on Remand
On remand, the trial court redesignated the felony count of assault with bodily injury as a misdemeanor simple assault. (§ 240.)
Bell asked that the charge be "dismissed in the interest of justice" on the ground of insufficient evidence. The motion was denied.
Bell also moved to identify to which victim the assault charge applied, specifically Darnell Pryor, arguing he had never been charged with an assault on Kerry, and there was no evidence he had assaulted Pryor. The People responded that they were unable to address that issue.
The court denied the motion and sentenced Bell to 180 days in jail with credit for 180 days already served.
IV. Current Appeal
Bell filed a timely notice of appeal from the order granting his petition for resentencing but denying his motion to vacate the conviction. We appointed counsel for him who, as noted, filed a brief raising no issues and asking us to review the record independently to determine whether any arguable issues exist pursuant to Delgadillo. Counsel served a copy of the brief on Bell and informed him of his right to file a supplemental brief.
We sent a letter to Bell, informing him that his counsel had filed a Delgadillo brief raising no issues and that he could submit a supplemental brief or letter stating any grounds for the appeal, or contentions or arguments he wanted this court to consider. We also informed Bell that if no supplemental brief or letter was timely filed, we may dismiss the appeal as abandoned.
Bell filed a supplemental brief in which he mentions nothing about resentencing but argues no evidence supports his conviction for simple assault.
DISCUSSION
As relevant here, section 1172.6 allows a defendant convicted of murder to seek resentencing based on changes to the Penal Code effected under Senate Bill No. 1437 (2017-2018 Reg. Sess.; Sen. Bill No. 1437) (Stats. 2018, ch. 1015, § 4). (People v. Patton (2023) 89 Cal.App.5th 649, 655.) That bill "limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder." (Ibid.) The threshold question in a section 1172.6 proceeding, therefore, is whether the defendant was convicted under a theory of murder now invalid under Senate Bill No. 1437.
The trial court found that Bell was convicted under an invalid theory and was therefore eligible for resentencing.
Bell does not contest that finding. He argues only that insufficient evidence supports his conviction, which should therefore be vacated in the interest of justice.
In Delgadillo, our Supreme Court held that when appointed counsel in a criminal matter "finds no arguable issues to be pursued on appeal: (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." (Delgadillo, supra, 14 Cal.5th at pp. 231-232.)
Because this is an appeal from a denial of postconviction relief under section 1172.6, we are not required to conduct an independent review of the record as we would be in a direct appeal from a criminal conviction. (Delgadillo, supra, 14 Cal.5th at pp. 221-222.) When a defendant files a supplemental brief, however, we are "required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Id. at p. 232.)
Here, we decline counsel's request that we independently review the record, as nothing before us suggests such an exercise is necessary. However, Bell has filed a supplemental brief at our invitation.
In that brief, Bell raises no issue regarding his petition for resentencing but seeks to have his conviction for assault vacated. That issue is unrelated to his petition for resentencing, however, and is therefore beyond the scope of this appeal. A section 1172.6 proceeding is not an opportunity to challenge all aspects of a conviction, only the aspects implicated by Senate Bill No. 1437. Having raised no argument pertaining to Penal Code amendments under Senate Bill No. 1437, Bell's challenge necessarily fails.
DISPOSITION
The order denying Bell's motion to vacate his conviction is affirmed.
We concur: ROTHSCHILD, P. J. WEINGART, J.