People v. Frye CA3

Filed 8/22/24 P. v. Frye CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C100389

Plaintiff and Respondent, (Super. Ct. No. 99F01393)

v.

KARLOS FRYE,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216.

FACTS AND HISTORY OF THE PROCEEDINGS

On March 21, 2000, a jury found defendant Karlos Frye guilty of attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a)); count one) [unless otherwise stated, statutory section citations that follow are found in the Penal Code], assault with a

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semiautomatic firearm (§ 245, subd. (b); count two), and being a felon in possession of a firearm (§ 12021, subd. (a); count three). The jury also found true numerous enhancements, including that defendant had intentionally and personally discharged a gun proximately causing great bodily injury in the attempted murder (§§ 12022.53, subds. (b), (c), (d), 12022.7, subd. (a)) and that defendant committed the attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Finally, the trial court determined he had suffered a prior prison term (§ 667.5, subd. (b)). He was sentenced to an aggregate prison term of 40 years to life for the attempted murder and related enhancements plus 23 years for the other offenses and enhancements. We upheld this judgment in an unpublished opinion issued in 2002. (People v. Frye (Feb. 6, 2002; C037768) [nonpub. opn.].)

Thereafter, on July 26, 2023, defendant filed an in propria persona petition for resentencing under section 1172.6. Counsel was appointed and briefing followed. The prima facie hearing occurred on December 29, 2023, and the trial court took the matter under submission. On January 31, 2024, the trial court issued a written order denying defendant’s petition for relief because “the record of conviction conclusively proves the jury convicted petitioner of attempted murder under a still-valid theory of liability.” Specifically, the jury instructions given required the jury to find that defendant had harbored “ ‘express malice aforethought,’ ” and the jury had not been instructed “on the natural and probable consequences theory or any other theory of vicarious liability.”