People v. Darty CA3

Filed 5/22/24 P. v. Darty CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C099137

Plaintiff and Respondent, (Super. Ct. No. 09F00466)

v.

KORY LATRELL DARTY,

Defendant and Appellant.

Defendant Kory Latrell Darty appeals the trial court’s denial of his petition for resentencing under former Penal Code section 1170.95, now section 1172.6.1 His appellate counsel filed a brief raising no arguable issues under People v. Delgadillo

1 Undesignated section references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We refer to section 1172.6 throughout this opinion.

1

(2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436, and asked that we exercise our discretion to review the record for arguable issues on appeal. This court notified defendant that he had 30 days in which to file a supplemental brief raising any argument he wanted us to consider. Defendant filed a supplemental brief raising numerous contentions, including several relating to alleged errors arising from his trial.2 We focus on the trial court’s ruling on defendant’s section 1172.6 petition, as that is the order appealed from and the statute “does not permit a petitioner to establish eligibility [for resentencing] on the basis of alleged trial error.” (People v. DeHuff (2021) 63 Cal.App.5th 428, 438, fn. omitted.) With that focus in mind, the trial court was correct that the instructions given here showed that the jury necessarily found defendant guilty of attempted murder under a valid theory, so defendant was ineligible for relief as a matter of law. We therefore affirm. FACTUAL AND PROCEDURAL BACKGROUND In November 2008, after a dispute involving a romantic partner of defendant’s, defendant and a companion shot one man and attempted to shoot three of the victim’s companions. One of the victims was paralyzed from the waist down. Investigating police officers found 17 expended bullet casings. (People v. Darty (Sept. 17, 2012, C065494) [nonpub. opn.].) A jury found defendant guilty of four counts of attempted murder and found personal discharge and use of a firearm enhancements to be true. (§§ 187, subd. (a), 664, 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d).) The trial court sentenced defendant to