Opinion
E080129
02-15-2023
THE PEOPLE, Plaintiff and Respondent, v. DENI LAMONT PAULK, Defendant and Appellant.
Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB040026 Ronald M. Christianson, Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendant and appellant, Deni Lamont Paulk, filed a petition for resentencing pursuant to Penal Code former section 1170.95, which the court struck. After defendant filed a notice of appeal, this court appointed counsel to represent him.
All further statutory references are to the Penal Code unless otherwise indicated. Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
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), setting forth a statement of the facts, a statement of the case, and one potentially arguable issue: (1) whether the trial court erred in striking defendant's petition without appointing counsel and holding a further hearing.
In People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), the California Supreme Court recently held that Wende and Anders procedures do not apply in appeals from the denial of a section 1172.6 postjudgment petition. (Delgadillo, at pp. 224-226.)
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
We take judicial notice of this court's opinions in People v. Paulk (Jan. 4, 2005, E035748) [nonpub. opn.] (Paulk I), from defendant's appeal of the judgment, and People v. Paulk (Sep. 4, 2020, E075129) [nonpub. opn.] (Paulk II), from defendant's appeal of the denial of his first former section 1170.95 petition. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).)
A witness testified at defendant's trial that he saw defendant fire a small, black, nine-millimeter or .44-caliber Ruger semiautomatic handgun with a laser sight from the driver's seat across his passenger. The witness heard seven or eight gunshots. He described the shooting as follows: "[Defendant] took his time, because he had a beam on him. He was aiming real good. He had the red-the light. Just pow, pow, pow. Took his time." (Paulk II, supra, E075129.)
The victim screamed, "Help me. Help me." (Paulk II, supra, E075129.) Another witness testified the victim told him that defendant shot him. The victim died within minutes of the shooting from injuries caused by multiple gunshots-the pathologist identified nine or 10 separate entry wounds and a number of exit wounds. (Ibid.)
A jury found defendant guilty of first degree murder (Pen. Code, § 189) and found true the special allegations that defendant committed the crime for the benefit of a criminal street gang and personally and intentionally used a firearm causing death (§§ 186.22, subd. (b), 12022.53, subd. (d)). The court sentenced him to an indeterminate term of 25 years to life for the murder with a consecutive firearm use enhancement of 25 years to life, and a consecutive determinate term of 10 years for the gang enhancement. (Paulk II, supra, E075129.)
On appeal from the judgment, defendant contended, in part, that the trial court erred in refusing to instruct the jury on second degree murder because it was a necessarily included offense of first degree murder, and the trial court had a sua sponte duty to instruct the jury on all lesser, necessarily included offenses supported by substantial evidence. (Paulk II, supra, E075129.)
In affirming the judgment, this court reasoned as follows: "Here, there was no evidence that defendant did not shoot at the victim or that he did not intend to kill. Using a semiautomatic weapon with a laser scope, he fired multiple shots, of which at least nine struck [the victim], from a distance of only a few feet. The witness testified that defendant took his time and aimed deliberately (although other witnesses testified that the shots were fired rapidly). The pathologist who conducted the autopsy testified that the pattern of bullet wounds was consistent with [the victim] having been struck by several bullets while seated in the back of the car and then having been struck by additional bullets in the back when turning away and trying to get out of the car. Given this evidence, no reasonable jury could have concluded that defendant did not intentionally shoot at [the victim] or that he did not intend to kill [the victim]. Rather, in finding the firearm use enhancement true, the jury expressly found that defendant 'personally and intentionally discharged a firearm." (Paulk I, supra, E035748.)
On November 18, 2019, defendant filed a petition for resentencing pursuant to former section 1170.95. (Paulk II, supra, E075129.) The court denied the petition, finding it failed to state a prima facie case as defendant is clearly the actual killer based on the jury findings from the case. (Ibid.)
On appeal, we affirmed, holding that "the trial court properly determined that defendant was prima facie ineligible for [former] section 1170.95 relief as a matter of law because he was the actual killer based upon his personal conduct as evidenced by the jury's findings preserved in the opinion." (Paulk II, supra, E075129.) We similarly held that "the court acted appropriately in relying on [the witnesses'] testimonies, as preserved in this court's opinion from the judgment, that defendant was the actual killer." (Ibid.; see Paulk I, supra, E035748.)
On July 7, 2022, defendant filed a second, form petition for resentencing pursuant to former section 1170.95. Defendant requested the appointment of counsel. On September 22, 2022, the court struck defendant's petition without appearances and "without further hearing." The court noted: "Defendant previously filed a [former section] 1170.95 Petition in November 2019. Counsel was appointed to represent the Defendant and the matter went to Prima Facie Hearing on 3/13/2020, at which time the petition was denied for failing to establish a prima facie case for relief."
II. DISCUSSION
Here, on December 12, 2022, we issued a "suboptimal" order, which included a reference to Wende; this implied that we would independently review the record for potential errors even if defendant chose not to file a supplemental brief. (Delgadillo, supra, 14 Cal.5th at pp. 230, 232.) Therefore, we exercise our discretion to do so even though not required. (Delgadillo, supra, 14 Cal.5th at p. 230 ["[I]f the appellate court wishes, it may also exercise its discretion to conduct its own independent review of the record in the interest of justice."]; id at p. 232 ["[I]t is wholly within the court's discretion [to] conduct[] its own independent review of the record in any individual section 1172.6 appeal."] id. at p. 233, fn. 6 ["[T]he decision to conduct independent review is solely up to the discretion of the Courts of Appeal ....].) We find no arguable issues.
III. DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
We concur: RAMIREZ P. J., FIELDS J.