People v. Hutton CA3

Filed 2/3/22 P. v. Hutton CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092488

Plaintiff and Respondent, (Super. Ct. No. 93F02093)

v.

DALE LEROY HUTTON,

Defendant and Appellant.

This appeal arises from the trial court’s denial of defendant Dale Leroy Hutton’s Penal Code section 1170.95 petition for resentencing.1 Appointed counsel for defendant filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant subsequently filed a supplemental brief also

1 Further undesignated statutory references are to the Penal Code.

1

seeking our review of his case but not arguing any specific issues with the judgment. After reviewing the entire record, we affirm the order. FACTUAL AND PROCEDURAL BACKGROUND Defendant and the victim were using drugs together when defendant stabbed the victim to death and took his money and drugs. On April 18, 1995, a jury found defendant guilty of second degree murder (§ 187, subd. (a)) and first degree robbery (§ 211). The jury also found true the allegation that defendant personally used a knife (§ 12022, subd. (b)). Defendant was acquitted of first degree murder with a robbery-murder special circumstance. He was sentenced to 15 years to life in prison for the murder plus a consecutive six years for the robbery and one year for the enhancement. In March 2019, defendant filed his petition for resentencing pursuant to recently enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.). In February 2020, after receiving briefing from the parties, the trial court denied the petition. The court reasoned that defendant was the actual killer and the jury was not instructed on any theory of accomplice liability or second-degree felony murder. The court further observed that defendant was convicted of second degree murder and the jury also found the allegation that he personally used a deadly weapon true. The court concluded he was thus convicted based solely on a theory of express or implied malice aforethought and was ineligible for relief under section 1170.95. Defendant timely appealed. DISCUSSION Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) 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