People v. Flitcroft CA1/5 ( 2022 )

Filed 12/2/22 P. v. Flitcroft CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A164451
v.
CALEB JAMES FLITCROFT, (Mendocino County
Super. Ct. No.
Defendant and Appellant. SCUK-CRCR-05-68281-2)
An indigent criminal defendant is entitled to his or her first appeal as
of right. (In re Sade C. (1996) 13 Cal.4th 952, 985–986.) Here, we face the
third appeal brought by defendant Caleb James Flitcroft. In defendant’s first
appeal (No. A121091), we affirmed the judgment after a jury convicted him of
second degree murder and attempted voluntary manslaughter and found true
as to both offenses that he personally discharged a firearm. He was
sentenced to the maximum term of 40 years to life.
In defendant’s second appeal (No. A158033), we affirmed a
postconviction order denying his petition for recall and resentencing under
former Penal Code1 section 1170.95, which has since been renumbered to
All statutory citations herein are to the Penal Code unless otherwise
1
indicated.
1
section 1172.62 (hereinafter, first petition). We held as a matter of law that
defendant was ineligible for relief under former section 1170.95 because he
was the actual killer of the victim, his then girlfriend Brittany Syfert
(hereinafter, Brittany).
Now, defendant appeals another postconviction order, this one denying
his third petition3 for recall and resentencing, under section 1172.6. After
defendant filed his notice of appeal, appellate counsel appointed to represent
him filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (People v.
Wende) in which he raised no issue for appeal and asked this court for an
independent review of the record. (See People v. Kelly (2006) 40 Cal.4th 106,
124 (People v. Kelly).) Defendant subsequently exercised his right to file a
supplemental brief in which he put forth many of the same arguments raised
in his second appeal—to wit, that the trial court violated his statutory and
constitutional rights by not appointing counsel to represent him for purposes
of his petition, by not allowing him to present new evidence, and by
summarily issuing a denial based on his record of conviction. In addition,
2 This recall and resentencing provision was originally codified as
section 1170.95. Following the California Supreme Court’s decision in People
v. Lewis (2021) 11 Cal.5th 952, the Legislature amended section 1170.95 to
codify its holdings. (Stats. 2021, ch. 551, § 1, subd. (b), No. 5C Deering’s Adv.
Legis. Service, p. 507.) The next year, the Legislature renumbered the
provision without substantive change, effective June 30, 2022. (Stats. 2022,
ch. 58, § 10, No. 2 Deering’s Adv. Legis. Service, pp. 1023–1024.) Unless
otherwise noted, we cite to the current version of the provision as codified in
section 1172.6.
3 Defendant filed a second petition for resentencing under former
section 1170.95 while his second appeal was pending. The trial court denied
it on the grounds that defendant’s appeal from the denial of the first petition
deprived the court of jurisdiction to recall his sentence, and even if it had
jurisdiction, the petition was “ ‘summarily denied because the petitioner is
not entitled to relief as matter of law.’ ”
2
defendant contends the trial court erred by finding that his claims were
barred by the law of the case as established by this court in his second
appeal.
For reasons discussed post, we conclude that People v. Wende review is
not constitutionally required for defendant’s present appeal because it is from
a postconviction order denying sentencing relief. Nonetheless, whether
People v. Wende review is required or not, we have considered defendant’s
supplemental brief and agree with counsel that no arguable issue exists on
appeal.4 Accordingly, we affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
On August 9, 2007, a jury convicted defendant of second degree murder
and attempted voluntary manslaughter, both enhanced for personal
discharge of a firearm. These crimes occurred during a birthday party when
defendant became enraged that his girlfriend Brittany was flirting with
another guest, Rudy Flores. As set forth in our prior opinions, the evidence
proved defendant exchanged blows with guests at Brittany’s birthday party,
stated he was through with her, and then went to his bedroom, where he
retrieved a nine-millimeter semiautomatic handgun with 10 bullets in the
clip. Defendant then walked quickly out of the house toward Brittany, who
was standing about a foot from Rudy. When defendant was within about 10
feet of Brittany, he stopped, raised his gun, aimed, and fired numerous shots
toward her and Rudy. Brittany was shot five times, in her back, chest, and
arm, while one bullet grazed Rudy’s side. Brittany ultimately died after
4As discussed post (p. 6), the propriety of considering a defendant’s
supplemental brief once counsel files a People v. Wende brief in the appeal of
a postconviction order is pending before the California Supreme Court in
People v. Weisner (2022) 77 Cal.App.5th 1072, 1076–1077, review granted
July 13, 2022, S274617.
3
being taken to the hospital. (People v. Flitcroft (June 5, 2009, A121091)
[nonpub. opn.] p. 5 (hereinafter, First Opinion).) Defendant was sentenced to
the maximum term of 40 years to life for Brittany’s murder and a concurrent
three-year term for the attempted voluntary manslaughter of Rudy. In our
First Opinion, in June 2009, we affirmed this judgment, and in August 2009,
the California Supreme Court denied review.
In May 2019, defendant, representing himself, filed his first petition for
recall of sentence and resentencing under former section 1170.95. Defendant
attested that he was convicted of second degree murder under the felony
murder rule or the natural and probable consequences doctrine and could not
now be convicted of murder under the changes to section 188 that became
effective January 1, 2019.
In June 2019, the trial court summarily denied the petition without
appointing counsel to represent defendant. The court reasoned that
defendant, as Brittany’s actual killer, was ineligible for relief. Defendant
appealed, and on February 1, 2021, we issued a nonpublished opinion
affirming the court’s order. (People v. Flitcroft (Feb. 1, 2021, A158033)
[nonpub. opn.] (hereinafter, Second Opinion).) In our Second Opinion, we
held “the record of conviction demonstrates that Flitcroft was the actual
killer of Brittany and is ineligible for relief under section 1170.95 as a matter
of law. There is no reasonable probability that Flitcroft’s petition would have
been granted if the trial court had appointed counsel, and any error in failing
to appoint counsel was harmless.” (Id. at p. 10.)
On January 3, 2022, defendant filed his third petition for recall and
resentencing, under section 1172.6, that is the subject of this appeal. As
before, he attested, inter alia, that he was convicted under “a theory of felony
murder, murder under the natural and probable consequences doctrine or
4
other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine,” and that he could not presently be convicted
of murder or attempted murder because of changes made to sections 188 and
189 effective January 1, 2019. (See § 1172.6, subd. (a)(1)–(3).)
On January 7, 2022, the trial court summarily denied defendant’s third
petition. The court reasoned: “The law of the case doctrine precludes
granting relief at this stage of these proceedings. ‘Where an appellate court
states in its opinion a principle of law necessary to the decision, that principle
becomes law of the case and must be adhered to in all subsequent
proceedings . . . under the doctrine of the law of the case, the case may not go
over ground that has been covered before in an appellate court.’ (Sargon
Enterprises, Inc. v. University of Southern California (2013) 215 Cal.App.4th
1495, 1506.) The Court of Appeal [in appeal No. A158033] has conclusively
determined that as a matter of law, petitioner is not eligible for resentencing
under Penal Code §1170.95 [now section 1172.6]. The law of the case
doctrine therefore precludes a different result in response to the third
petition.”5 This appeal followed.
DISCUSSION
As mentioned, appointed counsel has identified no issue for review.
While counsel asks this court to conduct a People v. Wende review, several
courts have held People v. Wende review is constitutionally required only
from a defendant’s first appeal from a criminal conviction. Under this case
law, People v. Wende review is not required from defendant’s present appeal
because it is from a postconviction order denying sentencing relief. (E.g.,
5We grant defendant’s request for judicial notice of the record on
appeal in case No. A158033.
5
People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review granted Oct. 14,
2020, S264278 [“Wende’s constitutional underpinnings do not apply to
appeals from the denial of postconviction relief”]; People v. Freeman (2021) 61
Cal.App.5th 126, 133, review den. May 12, 2021, S268011 (Freeman)
[People v. Wende procedures inapplicable to appeal from an order revoking
postrelease community supervision]; People v. Flores (2020) 54 Cal.App.5th
266, 273 [People v. Wende procedures inapplicable to appeal from denial of
petition for resentencing under § 1172.6].)
Nonetheless, “[w]hen an appellant files a pro se supplemental brief in a
Wende case, the appellate court must address the specific issues raised and, if
they lack merit, explain why they fail.” (Freeman, supra, 61 Cal.App.5th at
p. 134.) Some courts disagree with this approach. For example, the Third
District Court of Appeal recently held that because the defendant had no
right to People v. Wende review of his appeal from a postconviction order, the
court was left with a “standard” appeal that was abandoned once the
defendant, through counsel, attested that there were no cognizable issues on
appeal. (People v. Weisner, supra, 77 Cal.App.5th at pp. 1076–1077, rev.gr.)
As such, the court dismissed the appeal. (Id. at p. 1079, rev.gr.) The
propriety of this holding will soon be decided by the California Supreme
Court. Meanwhile, we follow our First Appellate District colleagues in
Freeman by considering the issues raised by defendant in supplemental
briefing. And, having done so, we affirm the trial court’s denial of section
1172.6 relief as follows.
The trial court summarily denied defendant’s third petition under the
doctrine of the law of the case. “ ‘ “The rule of ‘law of the case’ generally
precludes multiple appellate review of the same issue in a single case.” ’ ”
(People v. Gray (2005) 37 Cal.4th 168, 196 (Gray); see People v. Stanley (1995)
6
10 Cal.4th 764, 786 (Stanley).) “We will apply the law of the case doctrine
where the point of law involved was necessary to the prior decision and was
‘ “actually presented and determined by the court.” ’ . . . Because the law of
the case doctrine ‘is merely one of procedure and does not go to the
jurisdiction of the court [citations], the doctrine will not be adhered to where
its application will result in an unjust decision, e.g., where there has been a
“manifest misapplication of existing principles resulting in substantial
injustice” [citation], or the controlling rules of law have been altered or
clarified by a decision intervening between the first and second appellate
determinations [citation]. The unjust decision exception does not apply when
there is a mere disagreement with the prior appellate determination.’
(Stanley, supra, 10 Cal.4th at p. 787.)” (Gray, supra, 37 Cal.4th at p. 197.)6
In the Second Opinion, this court squarely addressed defendant’s
arguments that he made a prima facie showing that he could not be convicted
of murder under the amended versions of sections 188 and 189 and that his
statutory and/or constitutional rights were violated by the court’s failure to
permit him to present new evidence or to appoint counsel to represent him.
Affirming, we resolved these issues against defendant, concluding “the record
of conviction demonstrates that Flitcroft was the actual killer of Brittany and
is ineligible for relief under section 1170.95 [now section 1172.6] as a matter
of law. There is no reasonable probability that Flitcroft’s petition would have
been granted if the trial court had appointed counsel, and any error in failing
to appoint counsel was harmless.” (People v. Flitcroft, supra, A158033, at p.
10.) These legal issues were necessary to the Second Opinion and were
6 Defendant does not argue the “unjust decision” exception is grounds
for avoiding application of the law of the case doctrine.
7
“ ‘ “actually presented and determined” ’ ” by this court. (Gray, supra, 37
Cal.4th at p. 197.)
Here, defendant does little more than reassert these same arguments.
In addition, he points to Senate Bill No. 775 (2021–2022 Reg. Sess.), which
made certain amendments to former section 1170.95 effective January 1,
2022.7 (Stats. 2021, ch. 551, § 2, No. 5C Deering’s Adv. Legis. Service, pp.
507–509.) However, these amendments do not impact the fatal flaw in
defendant’s efforts to obtain relief under section 1172.6. As the Second
Opinion established, defendant, as the actual killer, is not eligible for relief as
a matter of law. (See, e.g., People v. Harden (2022) 81 Cal.App.5th 45, 59–60
[“Harden’s record of conviction conclusively establishes, with no factfinding,
weighing of evidence, or credibility determinations, that she was the actual
killer. . . . The trial court, therefore, correctly denied her petition at the
prima facie stage”].) Accordingly, under the doctrine of the law of the case,
the trial court was correct to decline to revisit this holding. (Stanley, supra,10 Cal.4th at p. 787; Gray, supra, 37 Cal.4th at p. 197.)
Having now ensured defendant received adequate and effective
appellate review, we affirm the order. (People v. Kelly, supra, 40 Cal.4th at
pp. 109, 112–113.)
7 In enacting Senate Bill No. 775, the Legislature: (1) clarified that
persons convicted of attempted murder or manslaughter under a theory of
felony murder or the natural and probable consequences doctrine are
permitted the same relief as those persons convicted of murder under the
same theories; (2) codified the holdings of People v. Lewis, supra, 11 Cal.5th
952, regarding petitioners’ right to counsel and the standard for determining
the existence of a prima facie case; (3) reaffirmed that the proper burden of
proof at a resentencing hearing is proof beyond a reasonable doubt; and
(4) addressed what evidence a court may consider at a resentencing hearing.
(Stats. 2021, ch. 551, § 1, No. 5C Deering’s Adv. Legis. Service, p. 507.)
8
DISPOSITION
The trial court order denying defendant’s third petition for recall and
resentencing under section 1172.6 is affirmed.
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Burns, J.
_________________________
Wiseman, J.*
A164451/People v. Caleb James Flitcroft
*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
9