People v. Harvest CA2/6

Filed 1/3/23 P. v. Harvest CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B320179 (Super. Ct. No. SB196743) Plaintiff and Respondent, (Santa Barbara County)

v.

DWAYNE DIENELL HARVEST,

Defendant and Appellant.

Dwayne Dienell Harvest appeals from the postjudgment order denying his petition for resentencing pursuant to Penal Code section 1170.95 (renumbered as section 1172.6 without substantive change).1 We affirm. In 1993, Harvest was found guilty in a court trial of residential burglary of the home of Jane Doe (§ 459), assaulting her with intent to commit rape (§ 220), and attempted murder of her son, Joseph M. (§§ 664, 187, subd. (a)). The court found true

1 Subsequent statutory references are to the Penal Code.

1

enhancements that he personally used a deadly weapon (a knife) in the attempted murder and burglary (§ 12022, subd. (b)), and personally inflicted great bodily injury on Joseph M. during the attempted murder with the intent to inflict such injury (§ 12022.7). Harvest was sentenced to life imprisonment with the possibility of parole for the attempted murder, plus one year for the use of a deadly weapon and three years for inflicting great bodily injury. He received a consecutive determinate sentence of six years for assault with intent to commit rape, plus five years for a prior serious felony conviction (§ 667, subd. (a)). The court stayed a six-year sentence for residential burglary pursuant to section 654. We affirmed the judgment on appeal. (People v. Dwayne Dienell Harvest (Nov. 23, 1994, B077842) [nonpub. opn.].) In January 2022, Harvest filed a petition for resentencing (§ 1172.6). The court appointed the public defender to represent him. After a hearing, the court denied the petition. The court found that Harvest did not make a prima facie case for relief because he was the sole defendant in the case, he personally used a knife in the commission of the crime, and there is no indication the conviction was based on the now-invalid theory of natural and probable consequences. We appointed counsel to represent Harvest in this appeal. After examining the record, counsel filed an opening brief that raises no arguable issues. (People v. Serrano (2012) 211 Cal.App.4th 496, 503.) Harvest filed a supplemental brief in which he raises several issues. Because this appeal is from an order denying postconviction relief rather than a first appeal of right from a