People v. Russell CA4/1

Filed 8/25/22 P. v. Russell CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D080242

Plaintiff and Respondent,

v. (Super. Ct. No. SCN217314)

KARL JOSEPH RUSSELL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Pamela M. Parker, Judge. Affirmed. Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. This is an appeal from a second, successive petition for resentencing

under Penal Code1 section 1172.6.2 The undisputed record shows Karl

1 All further statutory references are to the Penal Code unless otherwise specified.

Joseph Russell was the sole perpetrator of the homicide and was the actual killer. In 2008, Russell was convicted of first degree murder (§ 187, subd. (a); count 1); evading an officer causing death (Veh. Code, § 2800.3; count 2); residential burglary (§ 459; count 3); and vehicle theft (Veh. Code, § 10851, subd. (a); count 4). The court found true a weapon enhancement under section 12022, subdivision (b) and found he personally caused great bodily injury (§ 12022.7, subd. (a)). Russell was sentenced to an indeterminate term of 26 years to life in prison. Russell appealed and this court affirmed the judgment in a published opinion. (People v. Russell (2010) 187 Cal.App.4th 981.) In October 2020, the trial court appointed counsel and denied Russell’s first petition for resentencing under section 1172.6. Russell appealed. On March 22, 2021, this court affirmed the order denying the first petition. In January 2022, Russell filed an essentially identical second petition for resentencing. The trial court denied Russell’s request for counsel since the petition is a repeat of the earlier petition for which Russell received counsel. The court also found the record of conviction established Russell was the actual killer and was not eligible for resentencing. Russell filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any