Filed 6/8/21 P. v. Walton 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,
Plaintiff and Respondent, C090876
v. (Super. Ct. No. 11F02805)
MICHAEL SIMLEE WALTON,
Defendant and Appellant.
Appointed counsel for defendant Michael Simlee Walton asked this court
to review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would
result in a disposition more favorable to defendant, we will affirm the judgment.
I
In April 2011, defendant fired multiple shots into a crowd of people after an
altercation at a house party. In August 2012, a jury found defendant guilty of the murder
of one victim, the attempted murder of a second victim, assault with a gun on three other
victims, being a felon in possession of a firearm, and receiving stolen property (the gun).
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Multiple gun enhancements were also found true. The trial court sentenced defendant to
state prison for a determinate term of 26 years four months and a consecutive minimum
indeterminate life term of 65 years.
This court affirmed defendant’s convictions in People v. Walton (Sept. 10, 2018,
C072267) [nonpub. opn.] (Walton I), but vacated defendant’s sentence and remanded the
matter to allow the trial court to exercise newly granted discretion to strike one or more
of the firearm enhancements based on statutory amendments that took effect while
defendant’s appeal was pending.1
On remand, the People opposed striking any of the firearm enhancements, arguing
the enhancements were warranted given defendant’s long criminal history, the extremely
violent nature of the offenses with five shooting victims, and defendant’s callous conduct
that showed an extreme indifference to human life. The prosecutor attached the original
probation report, letters from the homicide victim’s family, and this court’s opinion in
Walton I.
Defense counsel countered that the trial court should either strike or reduce the
firearm enhancements because the evidence at trial showed defendant had fired the gun to
defend himself after he had been attacked at the party. Defendant read a statement to the
trial court indicating that although he had been defending himself at the party, he
nevertheless took responsibility for the choice to carry a gun. He informed the trial court
that while in prison, he worked with an outreach program and had obtained certificates
for anger management, substance abuse treatment, cognitive awareness, and reentry,
among other things. He asked the trial court to strike the enhancements.
After considering the parties’ arguments, the trial court declined to strike the
firearm enhancements in the interest of justice. The trial court cited defendant’s lengthy
1 We treated defendant’s request to take judicial notice of the record in Walton I as a
motion to incorporate by reference and granted the request.
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criminal history and his actions in firing into a crowd of nearly 50 people, which left one
person dead and several others injured. At a subsequent hearing, the trial court
resentenced defendant to the prison term previously imposed.
II
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
Defendant filed a supplemental brief arguing that on remand, his trial counsel
should have sought a hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin)
before he was resentenced, and counsel’s failure to do so constituted ineffective
assistance.
A reviewing court has authority to affirm, reverse, or modify any judgment or
order appealed from and may order further proceedings. (Code Civ. Proc., § 43.)
“The order of the reviewing court is contained in its remittitur, which defines the scope
of the jurisdiction of the court to which the matter is returned.” (Griset v. Fair Political
Practices Com. (2001) 25 Cal.4th 688, 701; see Snukal v. Flightways Manufacturing, Inc.
(2000) 23 Cal.4th 754, 774, fn. 5 [“the terms of the remittitur define the trial court’s
jurisdiction to act”].) “The trial court is empowered to act only in accordance with the
direction of the reviewing court; action which does not conform to those directions is
void.” (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655; see Frankel v. Four Star
International, Inc. (1980) 104 Cal.App.3d 897, 902 [remittitur directions are contained in
the dispositional language of a reviewing court’s previous opinion].)
In this case, our disposition in Walton I affirmed defendant’s convictions, vacated
his sentence, and remanded the matter to the trial court to decide whether to exercise its
discretion to strike any or all of defendant’s gun enhancements and to resentence him
accordingly. (Walton I, supra, C072267, at p. 12.) The disposition did not direct the trial
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court to conduct a Franklin proceeding to determine whether defendant had been
provided with an adequate opportunity to make a record of youth offender information
for subsequent use by the parole board. (See, e.g., Franklin, supra, 63 Cal.4th 261;
Pen. Code, §§ 3051, 4801.) Because the trial court was limited on remand by our
disposition, counsel was not deficient in failing to seek a Franklin hearing on remand.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant. We express no opinion on
whether defendant is entitled to a Franklin proceeding by way of a motion in the trial
court. (In re Cook (2019) 7 Cal.5th 439, 451, 458 [inmates who are entitled to a youth
offender parole hearing under Penal Code section 3051 may seek the remedy of a
Franklin proceeding by filing a motion in the trial court].)
DISPOSITION
The judgment is affirmed.
/S/
MAURO, J.
We concur:
/S/
RAYE, P. J.
/S/
MURRAY, J.
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