Filed 4/19/21 P. v. Joyner 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C091224
Plaintiff and Respondent, (Super. Ct. No. 09F07948)
v.
SEAN JOYNER,
Defendant and Appellant.
This appeal arises from the trial court’s denial of defendant Sean Joyner’s petition
for resentencing under Penal Code1 section 1170.95. To facilitate our review, we will
summarize the relevant background facts from our opinion in defendant’s previous
appeal from the underlying conviction. (People v. Joyner (Oct. 25, 2013, C071202)
[nonpub. opn.].)2
1 Further undesignated section references are to the Penal Code.
2 We previously took judicial notice of this opinion and incorporated it, along with
the record from defendant’s direct appeal, into the record on this appeal.
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Defendant and codefendant Nicholas Newsome, both of whom were gang
members, confronted the victim, a rival gang member, outside of a nightclub. The victim
turned around and someone shot and killed him. Defendant later texted several
incriminating messages to the mother of his son, although he would not tell her whether
he was the shooter. (People v. Joyner, supra, C071202 at pp. 1-2.)
At trial, the jury was instructed on theories of direct aiding and abetting, murder
with malice aforethought, and voluntary manslaughter. The jury did not receive any
instructions on felony murder or the natural and probable consequences doctrine.
The jury found defendant guilty of second degree murder and found true
allegations the murder was committed for the benefit of a criminal street gang and that at
least one principal personally discharged a firearm. The trial court sentenced defendant
to a term of 40 years to life in prison. We affirmed the convictions on appeal. (People v.
Joyner, supra, C071202 at pp. 2-3, 7.)
After the enactment of section 1170.95, defendant filed a postjudgment petition
for resentencing. (Sen. Bill No. 1437 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1015, § 4.)
The trial court appointed counsel to represent defendant and both parties submitted
briefing.
The trial court issued a written order denying the petition, saying: “Neither party
appears to have examined the court’s underlying file for case No. 09F07948, a simple
review of which shows clearly that defendant Joyner is ineligible for . . . § 1170.95 relief
from his second degree murder conviction because the jury was not instructed on either a
felony-murder theory or the natural and [probable] consequences doctrine.
“Specifically, the jury found defendant Joyner not guilty of first degree murder
and instead convicted defendant Joyner of second degree murder with . . . §§ 186.22(b)
and 12022.53(e)(1) enhancements found true. The jury had been instructed with
CALCRIM No. 401, that ‘[t]o prove that a defendant is guilty of a crime based on aiding
and abetting that crime,’ the People needed to prove that the perpetrator committed the
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crime, defendant knew that the perpetrator intended to commit the crime, before or
during its commission defendant intended to aid and abet the perpetrator in committing
the crime, and defendant[’s] words or conduct did aid and abet the commission of the
crime. CALCRIM Nos. 520 and 521 were given on malice aforethought murder, and
other instructions were given on manslaughter, heat of passion, and imperfect self-
defense. There was no instruction given on either felony-murder or the natural and
probable consequences doctrine.”
The trial court concluded defendant “was convicted only on a general aiding and
abetting theory of liability that required a jury finding of intent to aid and abet the
commission of the murder.” Thus, because defendant could still be convicted of murder
under sections 188 and 189, he was ineligible for relief under section 1170.95.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the relevant procedural history of the case and requests this court
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right
to file a supplemental brief and filed a letter directing the court to a document entitled
“Petition for Writ of Habeas Corpus with Memorandum of Points and Authorities Penal
Code 1487 / Motion to Recall Remittitur,” which had been filed as a habeas petition. We
previously denied the petition.
Whether the protections afforded by Wende and the United States Supreme
Court’s decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to
an appeal from an order denying a petition brought under section 1170.95 is an open
question. Our Supreme Court has not spoken on that issue. In Figueras, we described
the Anders/Wende procedure we believed applicable to appeals from section 1170.95
petitions: “ ‘[C]ounsel appointed in such appeals is required to independently review the
entire record and, if counsel so finds, file a brief advising the appellate court that there are
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“no arguable issues to raise on appeal”; [counsel must inform] the defendant [that he or
she] has a right to file a supplemental brief [within 30 days of the filing of counsel’s
brief]; and this court has the duty to address any issues raised by the defendant but
otherwise may dismiss the appeal without conducting an independent review of the
record.’ ” (People v. Figueras (2021) 61 Cal.App.5th 108, 112-113.) We do not
consider a reference to a previously denied habeas petition as the filing of a supplemental
brief. Thus, “[b]ecause defendant has not filed a supplemental brief, we dismiss the
appeal as abandoned.” (Id. at p. 113.)
DISPOSITION
The appeal is dismissed.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Krause, J.
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