People v. Flowers CA4/1

Filed 3/18/21 P. v. Flowers CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077976

Plaintiff and Respondent,

v. (Super. Ct. No. SCD193788)

RICO FLOWERS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2007, a jury convicted Rico Flowers of first degree murder (Pen.

Code,1 § 187, subd. (a)). The jury also found true an allegation that Flowers personally discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d)) and that the crime was committed for the benefit of a

1 All further statutory references are to the Penal Code.

criminal street gang (§ 186.22, subd. (b)(1)). The court sentenced Flowers to an indeterminate term of 50 years to life in prison. Flowers appealed and this court affirmed the judgment in an unpublished opinion. (People v. Flowers (D051720, Jan. 22, 2009) [nonpub. opn.].) In 2019, Flowers filed a petition for resentencing under section 1170.95. The court appointed counsel, received briefing from the parties, and reviewed the record of conviction. The court found the record established Flowers was the actual killer and was therefore ineligible for relief under section 1170.95. The court denied the petition by written order. Flowers filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating he has not been able to identify any arguable issue for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Flowers the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS The facts of the offenses in this case are fully set forth in our prior opinion in People v. Flowers, supra, D051720. We will not repeat them here. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks this court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issue that was considered in evaluating the potential merits of this appeal: Whether the trial court prejudicially erred by summarily denying the petition for resentencing for failure to set forth a prima facie case for relief.