People v. Harris CA3

Filed 3/14/23 P. v. Harris CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C097285

Plaintiff and Respondent, (Super. Ct. No. 93F08601)

v.

JOHNNIE HARRIS,

Defendant and Appellant.

Defendant Johnnie Harris appeals from an order denying his second petition to vacate his murder conviction under former Penal Code section 1170.95 (now section 1172.6).1 Appointed counsel for defendant has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on

1 Undesignated statutory references are to the Penal Code. Defendant filed his second petition in January 2022. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). For purposes of clarity and conformity with the petition, we will continue to refer to the statute as former section 1170.95.

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appeal and defendant has filed a supplemental brief raising various arguments. (People v. Wende (1979) 25 Cal.3d 436; People v. Delgadillo (2022) 14 Cal.5th 216.) We have considered defendant’s arguments and will affirm the trial court’s order. I. BACKGROUND In our previous decision considering defendant’s first petition for resentencing, we summarized the history of the case, saying, “In 1994, defendant pleaded guilty to second degree murder after he beat and killed the victim, the daughter of his girlfriend, while he was babysitting. The parties stipulated defendant ‘murdered [the victim], age two, by causing 16 of her ribs to be fractured and caused her liver to be severed,’ and defense counsel clarified defendant ‘had no intent to kill. This was a matter of extreme frustration, and we’re entering this plea upon an implied malice theory.’ ” (People v. Harris (Oct. 29, 2021, C093446) [nonpub. opn.].) In 2019, defendant filed his first petition for resentencing under former section 1170.95. The trial court denied the petition, noting, “defendant had pleaded guilty to second degree murder ‘on an implied malice theory.’ ” (People v. Harris, supra, C093446.) The trial court explained, “there was no evidence ‘anyone except [defendant] had personally inflicted the fatal injuries on the child victim . . . ; as such, no instruction would have been given at trial on the natural and probable consequences doctrine of accomplice liability. Nor would any felony-murder instruction [have] been given, as the only possible underlying felonies would have been assaultive crimes that would have impermissibly merged with the murder [citation]; further . . . felony child abuse additionally would not have qualified for the second-degree felony-murder rule, as the courts of appeal have held in cases also decided before the instant murder that felony child abuse is not an inherently dangerous felony [citations].’ ” (Ibid.) On appeal, we exercised our discretion to conduct an independent review of the entire record, found no arguable error in defendant’s favor, and affirmed the trial court’s order denying relief. (Ibid.)