Background
Michael Antione Larry appealed from the denial of his petition for resentencing under Penal Code section 1172.6. His appointed appellate counsel identified no arguable issues and filed a brief requesting that the court exercise its discretion to conduct an independent review of the record as set forth in People v. Delgadillo. Larry also filed his own supplemental brief. The appeal arose from Los Angeles County Superior Court case number A622065 and was decided by the California Court of Appeal, Second Appellate District, Division Two, in docket B351255.
A jury convicted Larry in 1985 of first degree murder, two counts of robbery, attempted robbery, and two counts of assault with a deadly weapon. The jury found true the special circumstance allegation that Larry committed the murder while engaged in the commission of a robbery, found that he personally used a firearm within the meaning of section 12022.5 on all counts, and found that he inflicted great bodily injury within the meaning of section 12022.7 on counts four and five. Larry was sentenced to life without the possibility of parole. In 2023, he filed a petition for resentencing under section 1172.6. There was no dispute that the jury was instructed on the felony-murder rule.
The Court’s Holding
The People argued that the jury necessarily found defendant to be the actual killer because the jury was not instructed on the general principles of aiding and abetting and found that defendant personally used a firearm during the commission of the crimes. The trial court denied the petition, finding that defendant did not establish a prima facie case that he was convicted under an imputed malice theory. Larry filed a timely notice of appeal. The appellate court explained that where, as here, appointed counsel finds no arguable issues in an appeal that is not from the first appeal after conviction, the court is not required to conduct an independent review of the record. However, even without such review, the court gives the defendant the opportunity to file his or her own supplemental brief or letter and then evaluates any specific arguments raised.
Counsel provided defendant with a copy of the record on appeal and informed him of his right to file his own supplemental brief. The court notified defendant of counsel's brief and gave defendant 91 days to file his own letter or brief stating any grounds for an appeal, contentions, or arguments he wished to be considered, warning that if he did not the appeal would be dismissed. Defendant filed a supplemental brief within the time allowed. In it, he asserted that he was constructively denied counsel during trial because his appointed counsel refused to use diminished capacity as a defense during the guilt phase of trial, and instead argued to the jury that defendant was not the shooter. The court held that this argument was not relevant to the issues raised in his section 1172.6 petition: defendant did not raise an ineffective assistance claim before the trial court in this petition, and none was currently before the appellate court. Therefore, defendant's arguments have no merit, and the court affirmed the order.
Key Takeaways
- The court affirmed the order denying Larry's Penal Code section 1172.6 resentencing petition.
- The trial court denied the petition after finding that defendant did not establish a prima facie case that he was convicted under an imputed malice theory.
- Under Delgadillo, the court was not required to independently review the record in this appeal, which was not the first appeal after conviction, because appointed counsel found no arguable issues.
- The court still gave Larry the opportunity to file a supplemental brief and evaluated the specific argument he raised.
- Larry's supplemental claim that trial counsel constructively denied him counsel by rejecting a diminished-capacity defense was not relevant to the issues raised in his section 1172.6 petition, and the court decided no ineffective-assistance claim because none was raised in the petition or before the appellate court.
Why It Matters
The decision applies Delgadillo's distinction between independent review of the record and evaluation of a defendant's own supplemental arguments in an appeal that is not the first appeal after conviction. It also shows that a supplemental brief must connect its contentions to the ruling under review: a new challenge to trial counsel's strategy did not supply a basis to reverse the denial of resentencing, because the argument was not relevant to the section 1172.6 issues and no ineffective-assistance claim was properly before the court.