People v. Burnett CA3

Filed 5/12/23 P. v. Burnett CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095101

Plaintiff and Respondent, (Super. Ct. No. 96F05901)

v. OPINION ON TRANSFER

CARLOS BURNETT,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant Carlos Burnett was found guilty of first degree murder and attempted murder after he and a codefendant shot and killed the victim in a gang-related incident. (People v. Burnett (June 30, 1998, C026520) [nonpub. opn.].) The jury also found true allegations that defendant personally used a firearm in the commission of both crimes and intentionally killed the victim by discharging a firearm from a motor vehicle. (Ibid.) We affirmed the convictions in an unpublished decision in 1998. (Ibid.)

1

After the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015), defendant sought resentencing under former Penal Code section 1170.95. (Former section 1170.95 has since been renumbered section 1172.6, with no change in text [see stats. 2022, ch. 58, § 10]; further undesignated statutory references are to the Penal Code.) The trial court appointed counsel and received briefing from the parties. The trial court reviewed the jury instructions given at defendant’s trial, observed that the jury had not been instructed on any theory of felony murder or the natural and probable consequences doctrine, and denied the petition accordingly. Defendant appealed the trial court’s order denying his petition for resentencing. Appointed counsel for defendant asked this court to independently review the record pursuant to Wende. Defendant failed to file a supplemental brief and we dismissed the appeal as abandoned. The California Supreme Court granted review of the case and later transferred the matter back to this court with instructions to vacate the dismissal and reconsider the case in light of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). This court sent defendant a letter notifying him of his obligations under Delgadillo. Defendant has filed a supplemental brief raising three issues. We have considered defendant’s arguments and will affirm the trial court’s order.