People v. Smith CA2/3 ( 2023 )

Filed 1/31/23 P. v. Smith CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B323003
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA371222)
v.
KEENAN K. SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Renee F. Korn, Judge. Affirmed.
Sally Patrone, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Keenan Smith appeals from an order denying his petition
for resentencing under Penal Code 1 section 1172.6.2 His
appellate counsel filed a brief under People v. Wende (1979) 25
Cal.3d 436 (Wende), asking us to independently review the
appeal. Exercising our discretion to independently review the
record (People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo)),3
we conclude that the trial court properly denied the petition.
In its order denying Smith’s petition, the trial court
summarized the facts as follows. In 2009, Edison Armstrong
broke up a fight between Smith’s wife and another woman. The
1 All further undesignated statutory references are to the
Penal Code.
2 Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
3 While this matter was pending on appeal, our California
Supreme Court issued Delgadillo, supra, 14 Cal.5th 216. The
court held that the procedures in Anders v. California (1967) 386
U.S. 738 and Wende do not apply to appeals from the denial of
postconviction relief under section 1172.6. The court instructed
that on appeal from an order denying section 1172.6 relief, a
counsel who finds no arguable issue should file a brief informing
the appellate court of that determination and include a concise
factual recitation. (Delgadillo, at pp. 231–232.) The appellate
court shall send a copy of the brief to the defendant informing the
defendant of the right to file a supplemental brief and that if one
is not filed within 30 days, the court may dismiss the matter.
(Ibid.) If a supplemental brief is filed, we must evaluate the
contentions in it. (Id. at p. 232.) If a supplemental brief is not
filed, we may dismiss the appeal as abandoned without a written
opinion. (Ibid.) However, we retain discretion to independently
review the record. (Ibid.)
2
next day, Smith nearly hit Armstrong with his car, pointed a gun
at Armstrong, and shot at Armstrong as he ran away. A week
later, Smith drove to Armstrong’s house and fired several shots
at him.
In 2010, a jury found Smith guilty of two counts of
attempted murder (§ 187, subd. (a), counts 1 & 2) and one count
of possession of a firearm by a felon (§ 12021, subd. (a)(1); count
3). As to the attempted murder counts, the jury found that Smith
personally used and discharged a gun (§§ 12022.5 subd. (a);
12022.53, subd. (c)). The jury found true the allegation that the
attempted murder charged in count 2 was premeditated and
deliberate but found the same allegation not true as to count 1.
On May 23, 2011, the trial court sentenced Smith on count
2 to life with a minimum parole eligibility period of seven years,
doubled to 14 years due to a prior strike that had been found
true, 20 years for the gun enhancement (§ 12022.53, subd. (c)),
and five years for a prior conviction (§ 667, subd. (a)). The trial
court imposed concurrent sentences on counts 1 and 3 and
imposed and stayed terms on the remaining enhancements.
In 2022, Smith petitioned for resentencing on his
attempted murder convictions under section 1172.6. The trial
court appointed counsel to represent Smith. The People opposed
the petition on the ground that Smith was not prosecuted under
the natural and probable consequences doctrine. In support, the
People submitted the jury instructions from Smith’s trial. The
trial court held a hearing on the petition at which Smith was not
present and at which his counsel submitted on his papers.
On June 3, 2022, the trial court found that Smith was
ineligible for relief as a matter of law and denied the petition.
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This appeal followed. Court-appointed appellate counsel
filed an opening brief that raised no issues and asked this court
to independently review the record under Wende, supra, 25
Cal.3d 436. We directed appellant’s counsel to send Smith the
record and a copy of the opening brief, and we advised that
within 30 days of the date of the notice, Smith could submit a
supplemental brief or letter stating any grounds for an appeal, or
contentions, or arguments he wished this court to consider.
However, the notice was defective because it did not inform
Smith that if he did not submit a supplemental brief, his appeal
could be dismissed as abandoned. (Delgadillo, supra, 14 Cal.5th
at pp. 233-234.) Therefore, as did the court in Delgadillo, we
exercise our discretion and independently review the record.
Senate Bill No. 1437 (2017–2018 Reg. Sess.) limited
accomplice liability under the felony-murder rule, eliminated the
natural and probable consequences doctrine as it relates to
murder, and eliminated convictions for murder based on a theory
under which malice is imputed to a person based solely on that
person’s participation in a crime. (§ 1172.6, subd. (a) [added by
Sen. Bill No. 1437]; People v. Lewis (2021) 11 Cal.5th 952, 957,
959; People v. Gentile (2020) 10 Cal.5th 830, 842–843.) Senate
Bill No. 1437 added section 189, subdivision (e) (limiting
application of the felony-murder rule) and section 188,
subdivision (a)(3) (stating that “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.”). As
amended, section 188 “bars a conviction for first or second degree
murder under a natural and probable consequences theory.”
(Gentile, at p. 846.) Senate Bill No. 775 (2021–2022 Reg. Sess.)
(Stats. 2021, ch. 551) expanded Senate Bill No. 1437 to include
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convictions for attempted murder under the natural and probable
consequences doctrine.
As the trial court found, Smith’s jury was not instructed on
felony murder, the natural and probable consequences doctrine,
aiding and abetting, or any other theory under which malice
could be imputed to him based on his participation in the crime.
(§ 1172.6, subd. (a).) The jury also found true personal gun use
allegations (§§ 12022.5 subd. (a); 12022.53, subd. (c)) and a
premeditation allegation as to count 2. The record therefore
shows that Smith was the sole participant in the crime and the
actual attempted killer. (See, e.g., Delgadillo, supra, 14 Cal.5th
at p. 233 [defendant ineligible for § 1172.6 relief where record
made clear Delgadillo was actual killer and only participant in
the killing].)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
NGUYEN (KIM), J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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