People v. Royle CA4/1

Filed 1/19/23 P. v. Royle CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D080881

Plaintiff and Respondent,

v. (Super. Ct. No. SCE276920)

KEVIN CHRISTOPHER ROYLE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Frank L. Birchak, Judge. Affirmed. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2009, a jury convicted Kevin Christopher Royle of first degree

murder (Pen. Code,1 § 187, subd. (a)) and found true firearm allegations that Royle personally, and intentionally discharged a firearm causing great bodily injury and death (§§ 12022.53, subd. (d), 12022.5, subd. (a)). Royle was

1 All further statutory references are to the Penal Code.

sentenced to an indeterminate term of 75 years to life plus a determinate term of 16 years in prison. Royle appealed his conviction, and this court affirmed the judgment in an unpublished opinion. (People v. Royle (Dec. 22, 2010, D055377).) In 2022, Royle filed a petition for resentencing under section 1172.6 (former section 1170.95). The trial court appointed counsel, received briefing, and reviewed the record of conviction. After conducting a hearing, the court found the petitioner had not stated a prima facie case for relief under the statute. The court said: “All right. The Court is relying in part on People v. Lewis, a 2021 California Supreme Court case, 11 Cal.5th 952, . . . 972, which says the trial court should use the record of conviction in assessing whether or not a prima facie showing was found. The Court is also considering People v. Cornelius, [(]2020[)] 44 Cal.App.5th 54, . . . 58, which discusses the intentional use of a firearm being evidence that somebody falls outside of felony murder, aiding and abetting, or natural and probable consequences. The Court’s also considering People v. Daniel, [(]2020[)] 57 Cal.App.5th 666, . . . 677, which indicates when someone was—when the jury was only instructed under CALCRIM 520, that is evidence that they were not convicted under either of the three theories. Also is considering People v. Edwards, [(]2020[)] 48 Cal.App.5th 666, . . . 674, again, having to do with how somebody was charged. And then People v. Tarkington, [(]2020[)] 49 Cal.App.5th, 892, . . . , 889, again, with the use of—personal use of a deadly weapon, indicating they do not qualify for relief. Based on all of those, the Court is denying the petition without an order to show cause hearing.”