People v. Parker CA1/4 ( 2020 )

Filed 12/22/20 P. v. Parker CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff and Respondent, A158365
v. (Contra Costa County
CALVIN LEON PARKER , Superior Court Case No. 29966)
Defendant and Appellant.
In 1985, a jury convicted defendant Calvin Leon Parker of second
degree murder in connection with the death of R.M.H., a 17-month old child
in his care. We affirmed that conviction in People v. Parker (December 30,
1986, A031657) (nonpub. opn.). In our earlier opinion, we noted that a
braided electrical cord was found in a search of defendant’s bedroom
pursuant to a warrant, and that a criminologist testified at trial that the
child’s multiple traumatic injuries were caused by the braided electrical cord
or some similar object.
On May 2, 2019, defendant filed a form petition pursuant to Penal
Code1 section 1170.95, alleging that he had been convicted of murder
pursuant to the felony murder rule or natural and probable consequences
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Undesignated statutory references are to the Penal Code.
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doctrine. After appointing counsel and reviewing the parties’ briefing, the
trial court denied defendant’s petition, finding that defendant had failed to
establish that he could not now be convicted of second degree murder as the
crime is now defined under sections 188 and 189. Relying on the undisputed
record of defendant’s conviction, including our earlier opinion, the court
reasoned that defendant was the sole participant alleged to have been
involved in the child’s death, and the jury was not instructed on either the
felony murder theory of liability or the natural and probable consequences
doctrine.
Defendant’s counsel filed an opening brief asking that this court
conduct an independent review of the record for arguable issues—i.e., those
that are not frivolous, as required by People v. Wende (1979) 25 Cal.3d 436(Wende). Counsel also informed defendant that he had the right to file a
supplemental brief on his own behalf, but defendant declined to do so.
Although the brief correctly recognizes that some of the issues raised by this
appeal are currently pending before our Supreme Court, we agree with the
resolution of those issues in People v. Lewis (2020) 43 Cal.App.5th 1128,
1137–1138, review granted March 18, 2020, S260598, and People v. Verdugo
(2020) 44 Cal.App.5th 320, 333, review granted March 18, 2020, S260493.
Accordingly, we agree with defendant’s counsel that there are no meritorious
issues and affirm the judgment.
I. BACKGROUND
In an information filed on January 29, 1985, defendant was the sole
defendant charged with murder (§ 187), felony child abuse (§ 273,
subd. (a)(1)), and felony corporal injury to a child (§ 273d) in connection with
the death of R.M.H., a 17-month old child. The jury was instructed on, e.g.,
the elements of murder committed with malice aforethought, the definition of
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malice aforethought (express and implied), deliberate and premeditated first
degree murder, second degree murder, and involuntary manslaughter. The
jury was not instructed on murder liability under the felony murder theory,
nor was it instructed on the natural and probable consequences doctrine as it
relates to aiding and abetting liability for murder.
The jury convicted defendant of second degree murder, and he was
sentenced to 15 years to life. We affirmed the conviction, noting that the trial
court record revealed the following pertinent facts: defendant’s mother
brought R.M.H. to the hospital; defendant’s mother and another individual
told police that R.M.H. was the child of defendant’s girlfriend; the child was
wearing a bloodstained diaper at the hospital and a bloodstained diaper was
seen in plain view in the home defendant shared with his mother; police
searched defendant’s bedroom pursuant to a search warrant and found a
braided electrical cord; the cord was introduced into evidence at trial; and a
criminologist testified that the child’s multiple traumatic injuries were
caused by the cord or some similar object.
On May 2, 2019, defendant filed a form petition pursuant to section
1170.95, checking a box stating that he was convicted of murder under a
theory of felony murder or under the natural and probable consequences
doctrine. He also sought appointment of counsel.
On May 13, 2019, the trial court appointed the Contra Costa Public
Defender to represent defendant. After reviewing the briefs filed by both the
Deputy Public Defender and the prosecutor, the trial court denied defendant’s
petition. The court noted that the jury was not instructed on either a theory
of felony murder or on the natural and probable consequences doctrine and
explained: “The reason [defendant] does not qualify to have his conviction
vacated is plain and simple. Given that the jury was not asked to consider
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[defendant’s] liability based on the conduct of another person, there was no
possibility that its finding that a second degree murder was committed
reflected [] a determination that [defendant] was guilty based upon his
having assisted someone else’s commission or attempted commission of a
target crime that led to the child’s death.” The court further concluded it was
“certain” that defendant was convicted of second degree murder based on
express or implied malice as those terms are still defined in sections 188 and
189, and that defendant had therefore failed to demonstrate a prima facie
case that he was entitled to relief under section 1170.95.
II. DISCUSSION
Defendant’s counsel filed a Wende brief, requesting that we
independently review the record to determine whether it contains any
arguable issues for appeal. We are not required to undertake an independent
review of the summary denial of a section 1170.95 resentencing petition
under Wende, but nothing prohibits us from exercising our discretion to do so.
(People v. Flores (2020) 54 Cal.App.5th 266.) We have chosen to conduct a
discretionary Wende review in this case. Our review of the charging
documents, jury instructions, verdict form, our prior opinion, pleadings filed
by defendant’s counsel in the trial court, and the trial court’s order
establishes that there are no meritorious issues to be argued.
In setting forth “possibly arguable, but unmeritorious issues” raised by
this appeal, defendant’s counsel notes that our Supreme Court has granted
review on the issue of whether a court deciding a section 1170.95 petition
may rely on the facts set forth in a prior appellate opinion in assessing
whether the petitioner has made a prima facie case for relief. He further
questions whether the case should be remanded to provide defendant an
opportunity to file an amended petition “because the widely circulated form
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petition encourage[s] inmates to assume it was only necessary for a pro se
petition to recite the eligibility criteria in order to trigger the appointment of
counsel and the opportunity for adversarial briefing.”
We agree with defendant’s counsel that these issues lack merit. Unless
and until the California Supreme Court decides otherwise, we agree with
Lewis, supra, 43 Cal.App.5th at pages 1137–1138 and Verdugo, supra,
44 Cal.App.5th at page 333, that a trial court may properly rely on an
appellate opinion in assessing whether the “record of conviction”
demonstrates that a petitioner has failed to make a prima facie showing of
entitlement to relief. We also reject as misguided defendant’s suggestion that
he should be afforded the opportunity to file an amended petition; the trial
court did not reject his petition based on any alleged inadequacies in the
form, and defendant’s appointed counsel in the trial court filed a brief in
support of defendant’s petition after seeking and obtaining a one-month
continuance because he needed additional time to review the record and facts
in the case.
Having examined the record to ensure that defendant receives effective
appellate review, we find no basis to reverse the dismissal of his petition.
(Wende, supra, 25 Cal.3d 436.)
III. DISPOSITION
The judgment is affirmed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
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