Filed 9/24/20 P. v. Horstman CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A159732
v.
JEFFREY PAUL HORSTMAN, (Solano County
Super. Ct. No. FC30086)
Defendant and Appellant.
Defendant Jeffrey Paul Horstman1 appeals from an order denying his
petition to vacate his conviction and to be resentenced pursuant to Penal
Code section 1170.95.2 His court-appointed counsel has filed a brief raising
no issues and seeking our independent review of the record pursuant to
People v. Wende (1979) 25 Cal.3d 436 (Wende). The brief includes counsel’s
declaration stating that he informed defendant of his intent to file a Wende
brief on his behalf, that he mailed a copy of the brief to defendant, and that
1 The trial court paperwork (indictment, minute orders, probation report,
abstract) and California Department of Corrections and Rehabilitation
paperwork spell defendant’s first name as “Jeffrey,” but his name is also
spelled “Jeffery” in the record provided to us and in his brief, with no
explanation concerning the spelling discrepancy. For clarity, we have
adopted usage of the spelling “Jeffrey” in this opinion.
2 All subsequent statutory references are to the Penal Code.
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he apprised defendant of his right to file a supplemental brief within 30 days
of the Wende brief filing. Defendant did not subsequently file a supplemental
brief. Having independently reviewed the record, we conclude there are no
reasonably arguable issues requiring further review. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In 1991, a grand jury returned an indictment charging defendant with
murder (§ 187, subd. (a)) and an enhancement for personally using a knife
(§ 12022, subd. (b)). It was further alleged that defendant committed the
murder while engaged in the commission of a robbery. (§ 190.2,
subd. (a)(17).) Defendant pled no contest to first degree murder and admitted
the knife use enhancement in exchange for the dismissal of the special
circumstance allegation and a 26-to-life sentence. He was sentenced to a
term of 25-to-life for the murder count, plus a consecutive one-year term for
the knife enhancement.
In short, the facts underlying the offense in this case are as follows.
Defendant was with his girlfriend and their two-year old child near a
shopping center. They asked the victim, Farrell Franklin Crone, for a ride
and the victim agreed. While the victim was driving, defendant grabbed him,
told him to get out of the car, and a struggle ensued. Eventually, the victim
got out of the car, only to collapse in an empty field and die within minutes
from a stab wound to his chest. Defendant told people that he stabbed the
victim. At the time, defendant was under the influence of alcohol and drugs.
In 2019, defendant filed a form petition for resentencing pursuant to
recently enacted section 1170.95. In his petition, defendant checked boxes
indicating: a charging document was filed against him allowing the
prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine; he pled guilty or no contest to
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first or second degree murder in lieu of going to trial because he believed he
could have been convicted of first or second degree murder pursuant to the
felony murder rule or the natural and probable consequences doctrine; and he
could not now be convicted of first or second degree murder due to the
changes to sections 188 and 189 effective January 1, 2019. Defendant
additionally checked boxes requesting counsel and stating there was a prior
determination by a court or jury that he was not a major participant and/or
did not act with reckless indifference to human life under section 190.2,
subdivision (d).
Attached to the petition were defendant’s abstract of judgment, and a
psychological evaluation dated June 1991. The psychological evaluation was
procured by defendant’s former attorney while defendant was awaiting trial.
The evaluation documented that defendant reported a period of severe
substance abuse around the time of the offense, a general history of
substance abuse, and previously stealing a car and stabbing people “ ‘in self-
defense.’ ” The psychologist stated his preliminary examination of defendant
suggested defendant acted out of substance-induced paranoia, and defendant
did not appear to initiate contact with the victim intending to steal the car.
The psychologist expressed doubt about defendant’s capacity to form an
intent to kill based on “the level of reported drug use” and “the apparent
existence of some delusional material.”
The trial court appointed counsel for defendant. The Solano County
District Attorney filed opposition, arguing defendant was ineligible for
resentencing under section 1170.95 because he was the actual killer.
Defendant filed reply papers admitting he was the actual killer, but he
argued that documents from the 1991 proceedings showed the People could
not have proved either express or implied malice beyond a reasonable doubt.
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He claimed the evidence that he was under the influence of alcohol and drugs
at the time of the offense could have supported a then-existing voluntary
intoxication defense to express and implied malice.
At the hearing on the petition, the deputy district attorney argued
defendant was ineligible for resentencing under section 1170.95. Without
tendering any specific arguments, defendant’s attorney stated that defendant
arguably might still be eligible for relief despite the fact he was the actual
killer. The trial court denied the petition, finding that defendant failed to
state a prima facie case for relief under section 1170.95.
DISCUSSION
Section 1170.95 was enacted as part of Senate Bill No. 1437 (SB 1437),
which “amend[ed] the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability
is not imposed on a person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f).) SB 1437 accomplished this through amendments to sections 188
and 189. (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
Specifically, SB 1437 amended the definition of “malice” in section 188
to read: “Except as stated in subdivision (e) of Section 189, in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based solely on his or
her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)
SB 1437 also amended the felony murder rule in section 189 to provide that a
participant in the perpetration or attempted perpetration of an enumerated
felony resulting in death is liable for murder only if one of the following is
proven: “(1) The person was the actual killer. [¶] (2) The person was not the
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actual killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless indifference to
human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)
(1); Stats. 2018, ch. 1015, § 3.)
Further, SB 1437 added section 1170.95, which allows defendants
convicted of murder to seek retroactive relief if SB 1437’s changes in the law
would affect their previously sustained convictions. As relevant here,
section 1170.95 provides that “[a] person convicted of felony murder or
murder under a natural and probable consequences theory may file a petition
with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts when all of
the following conditions apply: [¶] (1) A complaint, information, or
indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of first
degree or second degree murder following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first degree or
second degree murder. [¶] (3) The petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95.)
Here, defendant fails to show he could not now be convicted because of
the changes SB 1437 made to sections 188 or 189. Defendant was the actual
killer. He stabbed the victim in the chest with a knife, piercing the victim’s
lung and killing him. Defendant argued that he possibly had a defense to
negate malice via voluntary intoxication. Regardless of whether that is true,
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by no stretch of the imagination is it possible to say that defendant “could not
be convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3).)
Defendant offers nothing supporting a contrary conclusion.3 (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564 [“ ‘A judgment or order of the lower
court is presumed correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error must be
affirmatively shown.’ ”].) We thus affirm the order denying defendant’s
resentencing petition.4
3 We note and acknowledge the Supreme Court has granted review in
People v. Lewis (2020) 43 Cal.App.5th 1128 and will address, in part, whether
trial courts may “consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief under Penal
Code section 1170.95[.]” (People v. Lewis, review granted Mar. 18, 2020,
S260598.) Defendant here never argued below that the trial court could not
or should not consider the record of conviction in evaluating whether he
stated a prima facie case; nor does he raise that argument on appeal. To the
contrary, he relied on documents from his underlying proceeding in seeking
relief. As such, he has forfeited his opportunity to argue that the trial court
should not have considered his record of conviction in evaluating whether he
stated a prima facie case.
4 Finally, we acknowledge a recently published opinion, which is not yet
final, holds that “the procedures set forth in Wende do not apply to appeals
from the denial of postconviction relief,” that we have “no independent duty
to review the record for reasonably arguable issues,” and that when a
defendant fails to file a supplemental brief, “the Court of Appeal may dismiss
the appeal as abandoned.” (People v. Cole (2020) 52 Cal.App.5th 1023, 1024,
1028.) We agree that dismissal is discretionary and exercise our discretion to
conduct an independent Wende review here. (Conservatorship of Ben C.
(2007) 40 Cal.4th 529, 544, fn. 8; People v. Flores (Sept. 3, 2020, G058486) ___
Cal.App.5th ___ [2020 Cal. App. LEXIS 839].)
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DISPOSITION
The order denying the petition for resentencing pursuant to
section 1170.95 is affirmed.
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FUJISAKI, J.
We concur.
SIGGINS, P.J.
JACKSON, J.
(A159732)
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