People v. Sims CA3

Filed 7/17/23 P. v. Sims CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C089527

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE-19960006158, v. SC060460A )

JAMES SIMS, OPINION ON TRANSFER

Defendant and Appellant.

In 1996, a jury found defendant James Sims guilty of second degree murder and found true the firearm use allegation. The trial court sentenced defendant to a total of 19 years to life in prison.

1

In 2019, defendant filed a petition for resentencing pursuant to Penal Code1 section 1172.6.2 The trial court denied the petition at the prima facie stage, finding defendant was not entitled to relief as a matter of law because he was the actual killer and he was not tried under a felony-murder or aiding and abetting theory. Defendant appealed the trial court’s order denying his petition for resentencing. Counsel was appointed to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting this court to review the record and determine whether there were any arguable issues on appeal, in accordance with People v. Wende (1979) 25 Cal.3d 436. Defendant failed to file a supplemental brief and we dismissed the appeal as abandoned. The Supreme Court granted review and later transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of its recent opinion in People v. Delgadillo (2022) 14 Cal.5th 216. We sent defendant a letter notifying him of his obligations under Delgadillo. Defendant filed a supplemental brief, arguing: (1) the trial court gave misleading jury instructions during his original trial; (2) he is entitled to relief under section 1385 due to his youthfulness at the time of the crime; and (3) his appointed counsel rendered ineffective assistance by failing to address these two issues on appeal. We have considered defendant’s arguments and will affirm the trial court’s order. First, we decline to consider any alleged errors in the jury instructions. Section 1172.6 “does not permit a petitioner to establish eligibility on the basis of alleged trial