People v. Marsh CA4/1

Filed 8/31/23 P. v. Marsh CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081159

Plaintiff and Respondent,

v. (Super. Ct. No. CR59191)

DENIS PAUL MARSH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed. Denis Paul Marsh, in pro. per.; and Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 1983, following a court trial, Denis Paul Marsh was convicted of first

degree murder (Pen. Code,1 § 187, subd. (a)); conspiracy to commit burglary (§§ 182.1 & 459); robbery (§ 211); and arson (§ 451, subd. (b)). The court found Marsh personally used a weapon and personally inflicted great bodily

1 All further statutory references are to the Penal Code.

injury. Marsh was sentenced to an indeterminate term of 26 years to life in prison. In 2019, Marsh filed a petition for resentencing under section 1170.95 (now renumbered section 1172.6). The trial court appointed counsel, received briefing, and held a hearing. Relying in part on an earlier opinion of this court in Marsh’s first appeal, the court found Marsh was an active participant in the murder and denied the petition. Marsh appealed, and this court reversed the order denying the petition. We remanded the case to the trial court with directions to issue an order to show cause and conduct an evidentiary hearing. (People v. Marsh (Aug. 31, 2021, D078224) [nonpub. opn.) On remand, the trial court held an evidentiary hearing. The court received the record of conviction including the trial transcript. Marsh called witnesses including the codefendant, who was by then out of prison. The codefendant recanted his earlier statements and testified he alone was responsible for the murder. The court found, beyond a reasonable doubt, that Marsh was the actual killer of the victim, stabbing her with the intent to kill. The court again denied the petition. Marsh filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) indicating counsel has not been able to identify any potentially meritorious issues for reversal on appeal. Counsel asks the court to exercise its discretion to independently review the record for error in the same manner as we would in an appeal under People v. Wende (1979) 25 Cal.3d 436 (Wende). We notified Marsh of his right to file his own