Opinion
D082462
04-08-2024
Joanna McKim, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County, No. FBA009623 Steven A. Mapes, Judge. Affirmed.
Joanna McKim, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
IRION, J.
James Ruhollah Harrison appeals from a judgment denying his petition for resentencing under Penal Code section 1172.6. His appellate counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and Harrison filed a supplemental brief. We take judicial notice of the jury instructions, closing arguments, and the verdict forms from Harrison's record of conviction. (Evid. Code, §§ 452, subd. (c), 459.) Based on our independent review of the record, we find no reasonably arguable appellate issues and affirm the judgment.
All further statutory references are to the Penal Code unless indicated otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
In 2009, a jury convicted Harrison of first degree murder (§ 187, subd. (a)), conspiracy to commit first degree murder (§ 182, subd. (a)(1)), and solicitation of murder (§ 653f, subd. (b)). The jury also convicted Harrison's co-defendant of first degree murder (§ 187, subd. (a)), conspiracy to commit first degree murder (§ 182, subd. (a)(1)), and found true an allegation that the codefendant personally and intentionally discharged a firearm causing the victim's death (§ 12022.53, subd. (d).) The jury also found true allegations that the victim was a witness to a crime, and that Harrison and his co-defendant intentionally killed her for the purpose of preventing her testimony in a criminal proceeding. (§ 190.2, subd. (a)(10).) At trial, the prosecution's theory was that Harrison instructed his codefendant to kill the victim, who was Harrison's girlfriend, to keep her from testifying against Harrison in his upcoming attempted murder case.
Harrison was sentenced to an indeterminate state prison term of life without the possibility of parole.
In the direct appeal, the judgment against Harrison was affirmed. (People v. Harrison (Jan. 12, 2011, D055693) [nonpub. opn.].)
In August 2022, Harrison filed a petition for resentencing under former section 1170.95, now section 1172.6. Counsel was appointed. The People did not file a response but asked the superior court to take judicial notice of the jury instructions given at Harrison's trial.
Effective June 30, 2022, former section 1170.95 was renumbered to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
At the hearing on June 9, 2023, Harrison's appointed counsel appeared on his behalf and waived his appearance. The People contended Harrison failed to state a prima facie claim for relief because he was not prosecuted under a theory of felony murder or a natural and probable consequences theory. The superior court agreed and denied the petition. The court stated it made its ruling after "having reviewed the file[.]"
DISCUSSION
Harrison's appellate counsel has filed a brief raising no issues and requesting this court proceed pursuant to Delgadillo, supra, 14 Cal.5th 216. Upon receipt of the opening brief, we notified Harrison (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 supplemental brief, Harrison contends he was denied due process during his resentencing proceedings, because he never waived his appearance and the People never filed a response to his petition. He also contends the evidence presented at his trial was insufficient to show he was a major participant in the murder or acted with reckless indifference.
We conclude the trial court properly denied Harrison's section 1172.6 petition because Harrison failed to state a prima facie claim for relief. At Harrison's trial, the trial court informed the jury that in order to find Harrison guilty of first degree murder, it was required to find he "acted willfully, deliberately, and with premeditation." The court added: "The Defendant acted willfully if he intended to kill. The Defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The Defendant acted with premeditation if he decided to kill before committing the act that caused death." The court also informed the jury that to return a guilty verdict on the conspiracy charge it had to decide whether the "defendant intended to agree and did agree with the other defendant to intentionally and unlawfully kill". The jury was further instructed that to find Harrison guilty of solicitation of murder, the jury was required to find he "requested another person to commit the crime of first degree murder" and he "intended that the crime of first degree murder be committed." A true finding on the special allegations under Penal Code section 190.2, subdivision (a)(10) also required the jury to find that the victim "was a witness to a crime who was intentionally killed for the purpose of preventing her testimony in a criminal proceeding . . . ." The record of conviction thus establishes the jury necessarily found Harrison acted with the intent to kill, which renders him ineligible for relief as a matter of law under section 1172.6. (See People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Offley (2020) 48 Cal.App.5th 588, 599; People v. Medrano (2021) 68 Cal.App.5th 177, 185.)
We also reject Harrison's contentions that he was denied due process during his resentencing proceedings. Unlike an evidentiary hearing held after the court makes an order to show cause, a defendant does not have a right to be present for the prima facie hearing. (People v. Basler (2022) 80 Cal.App.5th 46, 57-58.) Additionally, although the People failed to file a response to the petition, because Harrison is ineligible for relief as a matter of law, he cannot show he was prejudiced by the lack of strict compliance with the briefing procedures set forth by section 1172.6. (See People v. Vance (2023) 94 Cal.App.5th 154, 162.)
Accordingly, based on our independent review of the record, we have not discovered any arguable issues for reversal on appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., BUCHANAN, J.