People v. Winters CA3

Filed 4/19/23 P. v. Winters CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C097005

Plaintiff and Respondent, (Super. Ct. No. 08F01141)

v.

ANTHONY JAMES WINTERS,

Defendant and Appellant.

Defendant Anthony James Winters appeals from an order denying his petition to vacate his murder conviction under Penal Code former 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 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.

1 Defendant filed his petition in March 2022. Effective June 30, 2022, former 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.

1

FACTUAL AND PROCEDURAL BACKGROUND In 2009, a jury found defendant guilty of second degree murder (Pen. Code, § 187, subd. (a))2 and found true an allegation that defendant personally and intentionally discharged a firearm causing the victim’s death. (§ 12022.53, subd. (d).) On direct appeal, we affirmed the judgment. (People v. Winters (May 5, 2011, C063994) [nonpub. opn.].) We summarized the evidence from the trial, including video that showed the victim and a man holding a can walking into a “restaurant alcove,” the victim running away with blood on his shirt shortly thereafter, and witnesses who testified they heard a gunshot and saw the victim run and collapse. Defendant’s DNA was found on a can at the crime scene. In March 2022, defendant filed a petition for resentencing under former section 1170.95. In the petition, he alleged his conviction was based on felony murder, murder under the natural and probable consequences doctrine, or another theory under which malice could be imputed to him based solely on his participation in a crime, and he could not now be convicted because of changes made to sections 188 and 189, effective January 1, 2019. The parties submitted briefing. The prosecution attached the jury instructions used at trial and argued defendant could not have been convicted under any of the relevant theories because the jury was not instructed on any of those theories. The court held a hearing on the petition in September 2022. The parties submitted on the briefing and the court denied the petition. The court also noted that although no motion on the firearm enhancement was pending, it believed the enhancement was appropriate and would not strike it if it had the discretion to do so in the future. Defendant timely appealed.