People v. Charles CA5

Filed 3/4/24 P. v. Charles CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F086515 Plaintiff and Respondent, (Super. Ct. No. BF134171A) v.

DERRICK DUPREE CHARLES, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Kern County. Elizabet Rodriguez, Judge. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Meehan, J. and DeSantos, J.

INTRODUCTION In 2011, appellant Derrick Charles (appellant) was convicted of attempted murder (Pen. Code,1 §§ 664/187, subd. (a)) and other offenses. In 2023, the trial court denied his section 1172.6 petition for resentencing for failing to state a prima facie case. On appeal, appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436.2 Appellant submitted a letter brief. We review his arguments and affirm the trial court’s denial of his petition. PROCEDURAL BACKGROUND In 2011, appellant was convicted after a jury trial of attempted murder, assault with a firearm (§ 245, subd. (a)(2)), possession of a firearm by a felon (former § 12021, subd. (a)), and active participation in a criminal street gang (§ 186.22, subd. (a)) with gang and firearm enhancements, and prior conviction allegations found true. He was sentenced to 40 years to life plus one year. In 2013, the judgment was affirmed on direct appeal. (People v. Charles, supra, F063975.)

1 All further statutory citations are to the Penal Code unless otherwise indicated. 2 This court granted appellant’s unopposed request to take judicial notice of the record and nonpublished opinion in his direct appeal, People v. Charles (Nov. 26, 2013, F063975). In reviewing a section 1172.6 petition, the court may rely on “the procedural history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3); People v. Clements (2002) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 406, fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in fact finding at the prima facie stage. (Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972.) We will not rely on these facts to resolve appellant’s appeal from the trial court’s order that found his petition did not state a prima facie case for relief.