People v. Fuqua CA3

Filed 11/26/24 P. v. Fuqua CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C099998

Plaintiff and Respondent, (Super. Ct. No. CR80875)

v.

KEVIN FUQUA,

Defendant and Appellant.

Defendant Kevin Fuqua appeals the denial of his Penal Code section 1172.6 petition.1 Appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436, asking this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. Fuqua filed a supplemental brief asserting that the trial court erred in denying his section 1172.6 petition at the prima facie stage and that the evidence was insufficient to convict him at his original trial. We affirm.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND In 1988, a jury found Fuqua guilty of first degree murder (§ 187, subd. (a)) and found true that he personally used a firearm (§ 12022.5). The trial court had only instructed the jury on malice aforethought murder. The court sentenced Fuqua to life with the possibility of parole. On direct appeal, this court granted him an additional day of custody credit and affirmed the judgment as modified. (People v. Fuqua (Mar. 5, 1990, C004789) [nonpub. opn.].) In 2019, Fuqua petitioned for relief under what is now section 1172.6. The trial court denied the petition because the jury “was not instructed on any theory of accomplice liability or felony-murder” and Fuqua was therefore ineligible for relief. In 2023, Fuqua again petitioned for resentencing pursuant to section 1172.6. He also requested resentencing under Assembly Bill No. 2942 (2017-2018 Reg. Sess.) and former section 1170, subdivision (d)(1) (now § 1172.1). The trial court again denied the section 1172.6 petition, reasoning that “the basis for denying the first petition remains applicable.” The court further concluded that Fuqua could not initiate the recall process under section 1172.1. Fuqua timely appealed the denial of his section 1172.6 petition. DISCUSSION Fuqua’s appointed counsel has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) In People v. Delgadillo (2022) 14 Cal.5th 216, our Supreme Court held that the Wende procedure does not apply in appeals from the denial of a section 1172.6 petition. (Delgadillo, at pp. 221-226.) Rather, when appointed counsel finds no arguable issue to be pursued on appeal and the defendant subsequently files a supplemental brief or letter, a reviewing court must evaluate the specific arguments presented in that brief and issue a written opinion. (Id. at pp. 231-232.)