People v. Humphrey CA3

Filed 12/10/20 P. v. Humphrey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091069

Plaintiff and Respondent, (Super. Ct. No. 02F02888)

v.

ROY LEE HUMPHREY,

Defendant and Appellant.

This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d 436. Most of the background facts are taken from our prior opinion in People v. Humphrey (May 4, 2011, C052744) [nonpub. opn.]. One evening in January 2002, defendant approached a poker game taking place on the front porch of a house, demanded money, and then, when met with resistance, pulled out a gun and fatally shot his victim. A jury found defendant guilty of several crimes, including murder committed in perpetration or attempted perpetration of a robbery (Pen.

1

Code, §§ 187, subd. (a), 189),1 and the trial court imposed a sentence of 25 years to life for the murder. In 2011 we affirmed defendant’s murder conviction in his direct appeal from the criminal judgment. (People v. Humphrey, supra, C052744.) In February 2019 defendant filed a section 1170.95 petition for resentencing, pursuant to recently enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.). On December 10, 2019, the trial court ruled defendant was ineligible for section 1170.95 relief, and denied the petition, because “defendant was the actual killer.” Defendant appealed from that order. Appointed counsel for defendant asked this court independently to review the record pursuant to Wende. Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a 65-page supplemental brief, raising numerous contentions, most of which are not properly before us. Whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal from an order denying a petition pursuant to section 1170.95 remains an open question. Our Supreme Court has not spoken. However, we are persuaded by the recent opinion of the Second District Court of Appeal, in People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, that the Wende/Anders procedures do not apply. (But see People v. Flores (2020) 54 Cal.App.5th 266, 269; People v. Gallo (Nov. 19, 2020, E074674) __ Cal.App.5th ___ [2020 Cal.App. LEXIS 1095,