People v. Thompson CA2/2 ( 2023 )

Filed 5/30/23 P. v. Thompson CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B309117
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. NA091280)
MATHEW ARLIN THOMPSON,
Defendant and Appellant.
THE COURT:
Pursuant to the April 12, 2023, order of the California
Supreme Court, we vacate our June 22, 2021, decision in this
matter. Upon reconsideration in light of People v. Delgadillo
(2022) 14 Cal.5th 216, 232–233 & fn. 6 (Delgadillo), we exercise
our discretion to conduct an independent review of the record.
Based on that independent review, we affirm the trial court’s
order denying the Penal Code section 1172.61 (former § 1170.95)2
petition filed by defendant and appellant Mathew Arlin
Thompson.
BACKGROUND
In 2013, a jury found defendant guilty of one count of
second degree murder (§ 187, subd. (a); count 1), two counts of
attempted murder (§§ 664, 187, subd. (a); counts 6 & 7), and one
count of shooting at an inhabited dwelling (§ 246; count 3).
(People v. Thompson (May 19, 2015, B252528) [nonpub. opn.],
p. 2.) The jury also found true gang and firearm enhancement
allegations. (Ibid.) The trial court sentenced defendant to a total
term of 140 years to life in state prison and imposed various fines
and fees. (Id. at pp. 2, 14.)
On direct appeal, we remanded the matter for the limited
purpose of resentencing. (People v. Thompson, supra, B252528,
at p. 16.) We directed the trial court to “strike the 20-year
firearm enhancement on count 1; strike the 15-years-to-life gang
enhancements on counts 3, 6 and 7; exercise its sentencing
discretion on the sentence range for count 3; modify the sentences
on counts 6 and 7 to indeterminate life sentences; and strike the
$1,000 assessment and surcharge.” (Ibid.) We affirmed the
judgment in all other respects. (Ibid.)
Defendant filed a petition for resentencing under
section 1172.6 and was appointed counsel. The People filed an
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
For simplicity, we refer to the section by its new numbering.
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opposition to the petition and attached, as exhibits, the
prosecutor’s closing argument and the jury instructions given.
Defendant’s counsel did not file a reply.
On November 16, 2020, the trial court held a hearing on
defendant’s petition for resentencing. At the hearing, defendant
made a motion pursuant to People v. Marsden (1970) 2 Cal.3d
118, which the court denied. The court then denied defendant’s
petition on the ground that, although defendant was not the
actual killer, he was convicted as an aider and abettor and not
under the natural and probable consequences doctrine or a felony
murder theory of liability. Defendant timely appealed from the
court’s order.
Counsel was appointed to represent defendant in
connection with this appeal. After reviewing the record,
appointed counsel filed a brief raising no issues and asking this
court to independently review the entire record on appeal for
arguable issues, pursuant to the procedures set forth in People v.
Wende (1979) 25 Cal.3d 436 (Wende). Counsel stated that she
had informed defendant that he could file a supplemental brief
and had sent him the transcripts of the record on appeal and a
copy of the opening brief.
On April 2, 2021, we sent a notice to defendant stating the
following: “Counsel appointed to represent appellant on appeal
has filed an appellant’s opening brief that raises no issues.
([Wende, supra,] 25 Cal.3d [at p.] 442.) [¶] Appointed counsel is
directed to send the record of this appeal and a copy of appellant’s
opening brief to appellant immediately. Within 30 days of the
date of this notice, appellant may submit a supplemental brief or
letter stating any grounds for an appeal, or contentions, or
arguments which appellant wishes this court to consider.”
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Because we did not receive a supplemental brief from
defendant, on June 22, 2021, we dismissed the appeal as
abandoned.
Defendant filed a petition for review with the California
Supreme Court, which was granted on August 25, 2021. In an
order filed on April 12, 2023, the California Supreme Court
transferred the case back to this court “with directions to vacate
[our] decision and reconsider whether to exercise [our] discretion
to conduct an independent review of the record or provide any
other relief in light of [Delgadillo, supra,] 14 Cal.5th [at pp.] 232–
233 & fn. 6.”
On April 25, 2023, defendant’s appointed counsel filed a
brief asking us to “either conduct an independent review of the
record or, alternatively, to provide [defendant] with an
opportunity to file a supplemental brief prior to dismissing the
appeal as abandoned . . . .” On May 3, 2023, the People filed a
letter indicating that it had “no objection to [defendant]’s
proposal[.]”
DISCUSSION
Delgadillo prescribed the following procedures when
appointed counsel finds no arguable issues in an appeal from the
denial of a section 1172.6 petition:
“(1) [C]ounsel should file a brief informing the court of that
determination, including a concise recitation of the facts bearing
on the denial of the petition; and (2) the court should send, with a
copy of counsel’s brief, notice to the defendant, informing the
defendant of the right to file a supplemental letter or brief and
that if no letter or brief is filed within 30 days, the court may
dismiss the matter. [Citations.]
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“If the defendant subsequently files a supplemental brief or
letter, the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion.
The filing of a supplemental brief or letter does not compel an
independent review of the entire record to identify unraised
issues. [Citations.] If the defendant does not file a supplemental
brief or letter, the Court of Appeal may dismiss the appeal as
abandoned. [Citation.] If the appeal is dismissed as abandoned,
the Court of Appeal does not need to write an opinion but should
notify the defendant when it dismisses the matter. [Citation.]
While it is wholly within the court’s discretion, the Court of
Appeal is not barred from conducting its own independent review
of the record in any individual section 1172.6 appeal.
[Citations.]” (Delgadillo, supra, 14 Cal.5th at pp. 231–232.)
Here, we provided notice to defendant before Delgadillo
was issued. Although our notice informed defendant of his right
to file a supplemental brief, it did not inform him that his appeal
could be dismissed if a supplemental brief was not filed.
Additionally, the notice “affirmatively cited Wende after
[defendant]’s counsel had filed a brief pursuant to Wende.”
(Delgadillo, supra, 14 Cal.5th at p. 233.) Thus, “the notice in this
case was suboptimal.” (Ibid.)
Under these circumstances and “in the interest of judicial
economy” (Delgadillo, supra, 14 Cal.5th at p. 222), we have
exercised our discretion to undertake an independent review of
the entire record on appeal. Based on this independent review,
we determine that defendant is not entitled to any relief under
section 1172.6. We are satisfied that defendant’s appellate
counsel has fully complied with her responsibilities and that no
arguable issues exist.
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DISPOSITION
The order denying defendant’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.
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