People v. Parker CA1/4

Filed 12/22/20 P. v. Parker CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, A158365

v. (Contra Costa County CALVIN LEON PARKER , Superior Court Case No. 29966) Defendant and Appellant.

In 1985, a jury convicted defendant Calvin Leon Parker of second degree murder in connection with the death of R.M.H., a 17-month old child in his care. We affirmed that conviction in People v. Parker (December 30, 1986, A031657) (nonpub. opn.). In our earlier opinion, we noted that a braided electrical cord was found in a search of defendant’s bedroom pursuant to a warrant, and that a criminologist testified at trial that the child’s multiple traumatic injuries were caused by the braided electrical cord or some similar object. On May 2, 2019, defendant filed a form petition pursuant to Penal Code1 section 1170.95, alleging that he had been convicted of murder pursuant to the felony murder rule or natural and probable consequences

1 Undesignated statutory references are to the Penal Code.

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doctrine. After appointing counsel and reviewing the parties’ briefing, the trial court denied defendant’s petition, finding that defendant had failed to establish that he could not now be convicted of second degree murder as the crime is now defined under sections 188 and 189. Relying on the undisputed record of defendant’s conviction, including our earlier opinion, the court reasoned that defendant was the sole participant alleged to have been involved in the child’s death, and the jury was not instructed on either the felony murder theory of liability or the natural and probable consequences doctrine. Defendant’s counsel filed an opening brief asking that this court conduct an independent review of the record for arguable issues—i.e., those that are not frivolous, as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel also informed defendant that he had the right to file a supplemental brief on his own behalf, but defendant declined to do so. Although the brief correctly recognizes that some of the issues raised by this appeal are currently pending before our Supreme Court, we agree with the resolution of those issues in People v. Lewis (2020) 43 Cal.App.5th 1128, 1137–1138, review granted March 18, 2020, S260598, and People v. Verdugo (2020) 44 Cal.App.5th 320, 333, review granted March 18, 2020, S260493. Accordingly, we agree with defendant’s counsel that there are no meritorious issues and affirm the judgment.