California Court of Appeal Nov 12, 2021 No. E076986Unpublished
Filed 11/12/21 P. v. King CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076986
v. (Super.Ct.No. FWV011147)
JESSE STEPHEN KING, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shahla Sabet,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Dismissed.
Jesse Stephen King, in pro. per.; and Michelle M. Peterson, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
INTRODUCTION
In 1997, a jury convicted defendant and appellant Jesse Stephen King of one count
of first degree murder (Pen. Code,1 § 187, subd. (a)) and found true the allegation that he
personally used a firearm in the commission of the offense (former § 12022.5, subd. (a)).
A trial court sentenced him to a total term of 35 years to life in state prison.
Approximately 22 years later, defendant filed a petition for resentencing under
section 1170.95, which the court denied. Defendant did not appeal that denial and the
order of the court became final. Over one year later, defendant filed a motion to
reconsider the petition. The court denied the petition again.
Defendant filed a notice of appeal. Counsel has filed a brief under the authority of
People v. Wende (1979) 25 Cal.3d 436. We dismiss.
FACTUAL BACKGROUND 2
At trial, the prosecutor argued that the evidence showed defendant went to the
victim’s residence to purchase drugs and see his friend. After letting the defendant come
inside, the victim then told defendant to leave. Defendant left but turned around and
went back to the victim’s residence. He knocked on the door. The victim looked through
the peephole, talked to defendant through the door, and said he could not come back in.
Defendant then pulled out a gun and fired it straight through the door, killing the victim.
1 All further statutory references will be to the Penal Code unless otherwise noted.
2 From the trial, the appellate record only contains the reporter’s transcript of the attorneys’ closing arguments. 2
The defense argued that the door was open, and the victim stuck his gun out at defendant.
Defendant pulled out his gun and shot the victim in self-defense.
PROCEDURAL BACKGROUND
Defendant was charged by amended information with first degree murder (§ 187,
count 1), and it was alleged that he personally used a firearm in the commission of the
offense (former § 12022.5, subd. (a)).
On July 18, 1997, the jury found defendant guilty of count 1 and found the firearm
enhancement true. On September 18, 1997, the court sentenced him to 25 years to life on
the murder conviction, plus 10 years on the firearm enhancement.
On June 5, 2019, defendant filed a petition for resentencing, in propria persona,
pursuant to section 1170.95. Using a form petition, he alleged that he was convicted of
first or second degree murder pursuant to the felony murder rule or the natural and
probable consequences doctrine, and that he could not now be convicted of first or
second degree murder because of the amendments to sections 188 and 189 since he was
not a major participant in the felony or did not act with reckless disregard to human life
during the course of the crime or felony. He also requested appointment of counsel.
Defendant attached multiple exhibits, which appeared to be excerpts from other briefs
containing numerous legal citations and asserting a myriad of claims. He appeared to be
claiming, among other things, that (1) a diminished capacity defense should have been
raised at trial; (2) there was prosecutorial misconduct, in that the prosecution withheld
exculpatory evidence; (3) the photographs of the victim submitted at trial were unduly
gruesome; and (4) the jury was erroneously instructed on second degree felony murder. 3
On June 11, 2019, after reviewing defendant’s petition, the court denied it, stating
that defendant was not convicted under the felony murder rule, and he personally used a
firearm.
On October 6, 2020, defendant filed a motion to reconsider the petition, in propria
persona. He argued that a diminished capacity defense should have been made by his
trial counsel and/or appellate counsel and that the jury would have only convicted him of
involuntary manslaughter. He refiled his section 1170.95 petition and attached portions
of different typewritten documents, asserting innumerable claims, including that: (1) the
evidence was insufficient to support a conviction for first degree murder; (2) shooting at
an inhabited dwelling (§ 246) is murder of the second degree, and he was never charged
with such; (3) the 10 years imposed on the firearm enhancement should be dropped; and
(4) he was denied due process. He also stated that he should have counsel appointed.
One of the exhibits defendant attached to the motion reflected that he filed a petition for
writ of habeas corpus with the Supreme Court, which was denied on March 11, 2020.
Another exhibit reflected that he filed a habeas corpus writ with this court, which we
denied on April 2, 2020.
On April 16, 2021, the court held a hearing on the motion to reconsider
defendant’s resentencing petition. Defendant was represented by counsel,3 who
reminded the court that it had previously denied the petition, finding defendant ineligible
for relief since he was not convicted under the felony murder rule and personally used a
3 The court noted that counsel was appointed to represent defendant on December 28, 2020. 4
firearm. The court confirmed such and then stated for the record that defendant “is a
habitual Petitioner of habitual non-meritorious petitions. And this is going on over
twenty years or so, I think.” The court then stated that it read defendant’s petition
repeatedly and summarized his claims as stating that if his trial attorney had mentioned
diminished capacity, and if the jury had heard such defense, he would have been
convicted of manslaughter instead of murder; therefore, he was eligible for relief under
section 1170.95 because he should have been convicted of manslaughter. Defense
counsel agreed with the summary. The court announced that it would deny the petition,
and both parties submitted.
On May 3, 2021, defendant filed a notice of appeal, in propria persona.
DISCUSSION
On the court’s own motion, the appeal is dismissed because it is taken from a
postjudgment order that does not affect defendant’s substantial rights. (§ 1237,
subd. (b).) Defendant seeks to challenge the trial court’s April 16, 2021 order denying
the motion to reconsider his resentencing petition. However, the court denied his original
resentencing petition on June 11, 2019. Defendant had 60 days to appeal that order, and
the order became final when he failed to do so. (Cal. Rules of Court, rule 8.104(a).)
Thus, the trial court had no jurisdiction to hear defendant’s subsequent motion to
reconsider the resentencing petition. Because the trial court had no jurisdiction to hear
defendant’s motion for reconsideration of his section 1170.95 petition, the court’s denial
of defendant’s motion could not have affected any legal rights defendant possessed.
(People v. Loper (2015) 60 Cal.4th 1155, 1165-1166.) 5
Therefore, we order the appeal dismissed.
DISPOSITION
Defendant’s appeal of the order denying his motion for reconsideration of the
resentencing petition is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J.
MILLER J.
6
AI Brief
AI-generated · verify before citing
Holding. The court dismissed the appeal because the trial court lacked jurisdiction to hear a motion for reconsideration of a previously denied and final section 1170.95 petition, meaning the order did not affect the defendant's substantial rights.
Issues
Whether the trial court had jurisdiction to hear a motion for reconsideration of a final order denying a section 1170.95 petition.
Whether the denial of a motion for reconsideration of a final resentencing order affects a defendant's substantial rights for purposes of appeal.
Disposition. dismissed
Quotations verified verbatim against the opinion
“On the court’s own motion, the appeal is dismissed because it is taken from a postjudgment order that does not affect defendant’s substantial rights.”
“Thus, the trial court had no jurisdiction to hear defendant’s subsequent motion to reconsider the resentencing petition.”