People v. Carskaddon CA3

Filed 11/24/21 P. v. Carskaddon CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093698

Plaintiff and Respondent, (Super. Ct. No. 03F07609)

v.

DON CARSKADDON,

Defendant and Appellant.

Defendant Don Carskaddon appeals from an order denying his postjudgment petition to vacate his murder conviction pursuant to Penal Code section 1170.95.1 Defendant’s appointed counsel found no arguable issues and filed a brief under People v. Wende (1979) 25 Cal.3d 436, asking this court to independently review the record to determine whether there were any arguable issues on appeal. Although properly advised

1 Further undesignated statutory references are to the Penal Code.

1

of his right to file a supplemental brief, defendant did not file one. We therefore dismiss the appeal as abandoned. BACKGROUND Based on a shooting spree in two locations, a jury found defendant guilty of the first degree murder of his eldest brother at their mother’s home, premeditated attempted murder of another brother and a lodger in the home, and shooting at that inhabited dwelling, as well as shooting at the inhabited dwelling of his former in-laws and their premeditated attempted murders. (People v. Carskaddon (July 14, 2009, C059839) [nonpub. opn.] (Carskaddon).) The jury also found various gun enhancements true. (Ibid.) He was sentenced to prison for an 80-year determinate term and a consecutive minimum indeterminate life term of 78 years, and we affirmed his convictions on appeal. (Ibid.) On June 4, 2020, defendant filed a pro per petition for resentencing under section 1170.95. He declared that he was convicted of first degree murder and four counts of attempted murder following a jury trial; that the prosecution asserted the theory of felony murder or the natural and probable consequences doctrine to convict him of first degree murder; and that he was eligible for relief because he could not now be convicted of first degree murder due to the retroactive changes made to sections 188 and 189, effective January 1, 2019. Defendant requested the appointment of counsel. The court appointed defendant counsel and ordered briefing by the parties. In response, the People moved to dismiss the petition, arguing, among other things, that as the actual killer defendant failed to state a prima facie case that he was eligible for relief under section 1170.95. The People’s motion recounted the facts underlying defendant’s crimes as outlined in this court’s unpublished opinion in Carskaddon. Defendant’s appointed counsel filed a written reply, arguing his declaration sufficiently established his prima facie burden. Defendant requested that the court review the record of conviction to determine whether he had stated a prima facie case for relief,