People v. Halbert CA4/1 ( 2020 )

Filed 8/20/20 P. v. Halbert CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077056
Plaintiff and Respondent,
v. (Super. Ct. No. SCD128329)
DERRICK EDWARD HALBERT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Kenneth K. So, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
This is an appeal from the denial of appellant’s petition for
resentencing under Penal Code1 section 1170.95 without conducting an
evidentiary hearing. We will affirm the order since the record of conviction
demonstrates appellant was originally convicted of both murder and
1 All further statutory references are to the Penal Code.
conspiracy to murder, thus demonstrating appellant acted with the specific
intent to kill the victim.
A jury convicted Derrick Edward Halbert and a codefendant of first
degree murder (§ 187, subd. (a)) and conspiracy to murder (§ 182,
subd. (a)(1)). The jury also found Halbert used a firearm (§ 12022,
subd. (a)(1)). Halbert was sentenced to an indeterminate term of 56 years to
life.
Halbert appealed his conviction and this court affirmed the judgment
in an unpublished opinion (People v. Halbert (Nov. 9, 1999, D031427 [nonpub.
opn.]). We also denied Halbert’s petition for habeas corpus on the same date.
In August 2019, Halbert filed a petition under section 1170.95, alleging
he had been convicted of murder on a theory of natural and probable
consequences or as a non-participating aider and abettor to a felony murder.
The court appointed counsel and on November 22, 2019, the court denied the
petition by written order. The court determined from the record of conviction
that Halbert’s conviction of conspiracy to murder demonstrated the jury
found he acted with specific intent to kill. Thus, the court found Halbert was
not eligible for resentencing under section 1170.95 as a matter of law.
Halbert has filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating she has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Halbert the opportunity
to file his own brief on appeal, but he has not responded.
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STATEMENT OF FACTS
The facts of the underlying convictions are fully set forth in our opinion
in People v. Halbert, supra, D031427. We see no reason to repeat them here.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
this court to review the record for error as mandated by Wende. To assist the
court in its review of the record, and in compliance with Anders v. California
(1967) 386 U.S. 738 (Anders), counsel has identified the following possible
issues which were considered in evaluating the potential merits of this
appeal:
1. Whether the court erred in finding Halbert’s conviction precluded
relief under section 1170.95; and
2. Whether the trial court’s denial of Halbert’s petition was prejudicial
error.
We have reviewed the entire record as mandated by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Halbert on this appeal.
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DISPOSITION
The order denying Halbert’s petition for resentencing under
section 1170.95 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
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