California Court of Appeal Feb 27, 2023 No. E079920Unpublished
Filed 2/27/23 P. v. Hines CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079920
v. (Super.Ct.No. FVI1201464)
WILLIE HINES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kawika Smith,
Judge. Dismissed.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Willie Hines appeals from the denial of his petition to vacate his attempted murder
conviction. (See Pen. Code, § 1172.6.)1 His appointed counsel could not identify any
1 All further statutory citations are to the Penal Code. [footnote continued on next page]
1
arguable issue. We gave him notice of that fact, and we gave him an opportunity to file a
personal supplemental brief, but he has not done so. Admittedly, under the Supreme
Court’s recent decision in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), our
notice was “suboptimal.” (Id. at pp. 222, 232.) Accordingly, out of an excess of caution,
we have carried out an independent review of the record. However, we, too, cannot
identify any arguable issue. Hence, pursuant to Delgadillo, we will dismiss.
I
STATEMENT OF FACTS
According to our opinion in petitioner’s direct appeal, in 2011, during an
argument, petitioner “stomped . . . out” his pregnant girlfriend, killing her and her unborn
child. (People v. Hines (June 8, 2015, E059223) [nonpub. opn.].) At trial, petitioner
argued that the killings were either an accident or voluntary manslaughter on a heat of
passion theory. (People v. Hines, supra, E059223.)
II
STATEMENT OF THE CASE
In 2013, in a jury trial, petitioner was found guilty on two counts of second degree
murder. (§ 187, subd. (a).) He was sentenced to a total of 30 years to life.
The petition was actually filed under former section 1170.95. (Enacted by Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2.) Less than a month later, however, section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) Somewhat anachronistically, we will use section 1172.6 to refer to whichever version of the statute was in effect at the relevant tine.
2
In 2022, petitioner filed a petition to vacate his murder convictions under section
1172.6.
The prosecution filed a written opposition, along with a request for judicial notice
of the entire case file; it argued that petitioner was the actual killer and was not convicted
on either a natural and probable consequences or a felony murder theory. It attached
copies of the jury instructions and our opinion.
Petitioner, in propria persona, filed a reply. He argued that he was entitled to
appointed counsel, and that he had not been given notice of any proceedings on the
petition, including notice of any order allowing the prosecution to respond. He also
asserted: “Petitioner never claimed eligibility under [the] felony murder or the natural
and probable consequences doctrine . . . . Petitioner is claiming that he would be eligible
for resentencing under [the] language that says ‘other theory under which malice is
imputed to a person based solely on that person’s participation in a crime . . .[’]”
The trial court appointed counsel for petitioner.
After a hearing, the trial court denied the petition; it ruled that “there’s not a prima
facie showing that Mr. Hines is eligible for the relief under 1172.6.”
III
DISCUSSION
Petitioner’s appointed appellate counsel has filed a “no-issue” brief, purportedly
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We offered petitioner an
opportunity to file a personal supplemental brief, but he has not done so.
3
In an appeal from the denial of a section 1172.6 petition, Wende does not apply;
we are not required to independently review the record in search of error. (Delgadillo,
supra, 14 Cal.5th at pp. 226-231.) Rather, if the petitioner has declined to file a personal
supplemental brief, the appeal should be dismissed as abandoned. (Id. at pp. 222, 232.)
Here, however, as in Delgadillo itself, the notice to petitioner was “suboptimal” in
two respects — “it indicated that the Wende procedures would apply when they did not,
and it did not inform [petitioner] that the appeal would be dismissed as abandoned if no
supplemental brief or letter was filed.” (Delgadillo, supra, 14 Cal.5th at p. 222.)
Accordingly, also as in Delgadillo, we review the record independently. (Id. at p. 233.)
The trial court correctly found that petitioner was statutorily ineligible because he
had not been prosecuted on either a natural and probable consequences theory or a felony
instructions established this. Arguably, the prosecution failed to properly authenticate
them; however, defense counsel forfeited this argument by failing to object. Moreover,
the failure to object was not ineffective assistance of counsel. If she had objected, the
prosecution could and would have properly authenticated the jury instructions. Thus, an
objection would have been futile, and the failure to object was not prejudicial.
Petitioner argued below that he was convicted on some other “theory under which
malice is imputed to a person based solely on that person’s participation in a crime.”
(See § 1172.6, subds. (a), (a)(1).) We need not decide whether, aside from the natural
and probable consequences doctrine and the felony murder rule, any such theory exists.
4
(See People v. Coley (2022) 77 Cal.App.5th 539, 546 [not deciding whether aiding and
abetting implied malice murder imputes malice based solely on participation in a crime].)
It suffices to note that the jury was not instructed on any such theory.
Petitioner also argued below that he had not been given notice of any order
allowing the prosecution to file an opposition. However, section 1172.6 does not
contemplate any such order; it allows the prosecution to file an opposition automatically
within 60 days after service of a petition that is in good form. (§ 1172.6, subd. (c).)
The prosecution did file its opposition belatedly, more than 60 days after service
(and even filing) of the petition. (See § 1172.6, subd. (c).) However, petitioner, in his
reply, and defense counsel, once she was appointed, forfeited this argument by failing to
object. Defense counsel’s failure to object was not ineffective assistance of counsel,
because the prosecution could have made all the same points at the hearing.
We have also considered whether the trial court erred by failing to give appointed
counsel an opportunity to file a reply to the prosecution’s opposition. (See § 1172.6,
subd. (c).) Appointed counsel forfeited any such error by failing to object. Moreover,
any such error was harmless, as appointed counsel appeared at the hearing and did not
raise any substantive argument. (See People v. Lewis (2021) 11 Cal.5th 952, 972-974
[state harmless error standard applies to failure to appoint counsel under § 1172.6].)
Therefore, any defect in our notice was harmless error.
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IV
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur:
McKINSTER J.
MILLER J.
6
AI Brief
AI-generated · verify before citing
Holding. The court dismissed the appeal after conducting an independent review of the record and finding no arguable issues regarding the denial of the defendant's petition for resentencing under Penal Code section 1172.6.
Issues
Whether the trial court erred in denying the defendant's petition for resentencing under Penal Code section 1172.6.
Whether the defendant was entitled to relief under Penal Code section 1172.6 based on theories of imputed malice.
Whether the appellate court's notice regarding Wende procedures was sufficient under People v. Delgadillo.
Disposition. dismissed
Quotations verified verbatim against the opinion
“In an appeal from the denial of a section 1172.6 petition, Wende does not apply; we are not required to independently review the record in search of error.”
“The trial court correctly found that petitioner was statutorily ineligible because he had not been prosecuted on either a natural and probable consequences theory or a felony murder theory.”