Filed 8/26/21 P. v. Razon CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077085
v. (Super.Ct.No. ICR17621)
DWAYNE BERNARD RAZON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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Defendant and appellant Dwayne Bernard Razon appeals the Riverside County
Superior Court’s denial of his petition for resentencing made pursuant to section 1170.95
of the Penal Code.1 We affirm.
BACKGROUND
1. The circumstances leading to defendant’s conviction
The background leading up to defendant’s petition for resentencing is taken from
our opinion issued in defendant’s appeal from the judgment. (People v. Razon (Feb. 26,
1998, E018625) [nonpub. opn.].) A copy of the opinion is included in the record on
appeal.
In June 1993, a police officer stopped in a parking lot to investigate a group of
men urinating in public view. That incident resulted in the arrest of one of the men, Carl
Lawson, who had approached the officer’s car, which contained a rifle, and ignored the
officer’s repeated warnings to move away. After leaving the scene, the cousin of
defendant’s girlfriend, Eric Morreo, asked the girlfriend to take his son home. Defendant
told the girlfriend something might happen, to run away and not look or come back, that
things could get rough. Defendant and Morreo returned to the parking lot, where they
moved in on the officer, throwing things and shouting profanities.
At one point during this confrontation, Morreo took an object from his waistband,
held it in his right hand while cupping it with his left, and extended his arms at a forty-
five-degree angle toward the ground. The officer took out his gun and pointed it at
1 All further statutory references are to the Penal Code.
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Morreo. Morreo took a wide stance, moved the object he was welding to his inner right
thigh, and inched toward the officer, saying, “Come on, come on.” Defendant leaned
toward Morreo and said, “Do him. Do him,” or, “Shoot him. Shoot him,” or “Kill him.
Kill him.” Morreo then took a combat stance, raised and centered his arms toward the
officer, and pointed the object at the officer’s chest. The officer fired his gun, mortally
wounding Morreo. The object Morreo had in his hands was a pair of sunglasses.
Morreo’s blood-alcohol level at the time of his death was 0.17.
A jury convicted defendant of second degree murder (§ 187), assault with a deadly
weapon upon a police officer (§ 245, subd. (c)), unlawful rescue of arrestee (§ 4550),
taking an arrestee by means of a riot (§ 405a), and delaying or obstructing an officer
(§ 148). He was sentenced to a prison term of 15 years to life.
Defendant appealed his conviction to this court. (People v. Razon, supra,
E018625.) We corrected an error in the abstract of judgment and affirmed the judgment
in all other respects. (Ibid.)
2. Defendant’s petition for resentencing
On January 1, 2019, Senate Bill No. 1437 became effective. (Stats. 2018,
ch. 1015.) That measure amended sections 188 (defining malice) and 189 (defining
degrees of murder) to limit the reach of the felony murder rule in cases of first and
second degree murder and eliminated the natural and probable consequences liability for
murder. (Stats. 2018, ch. 1015.) The bill also added section 1170.95, which creates a
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procedure for convicted murderers who could not be convicted under the law as amended
to retroactively seek relief.
In December 2020, defendant submitted a handwritten petition to the trial court
pursuant to section 1170.95 in which he requested resentencing under the new laws.
After that petition was summarily denied without prejudice, defendant filed a form
petition in February 2021. The court appointed counsel for defendant and ordered the
People to show cause why defendant should not be resentenced.
The People responded that defendant was not eligible for relief for each of two
reasons. First, the jury had not been given instructions on the felony murder rule or the
natural and probable consequences doctrine. Second, the jury had found defendant guilty
of provocative act murder. To convict on the theory of a provocative act, the jury was
required to find not only the act was intentional and its natural consequences were
dangerous to human life, but also that the act was deliberately performed with knowledge
of the danger to, and with conscious disregard for, human life.
In reply, defendant conceded that the jury had not been instructed on felony
murder rule or the natural and probable consequences doctrine. He claimed he was
nevertheless entitled to resentencing on the theory provocative act murder is an
application of the natural and probable consequences doctrine.
Defendant was not present but was represented by counsel when his petition was
heard in May 2021. The court noted that a petition for review had been denied in a case,
which was cited in the People’s arguments, holding that Senate Bill No. 1437 does not
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apply to provocative act murder. (People v. Johnson (2020) 57 Cal.App.5th 257, review
denied Feb. 17, 2021, S266188.) It found defendant statutorily ineligible for relief and
denied the petition.
Defendant appealed and we appointed counsel to represent him. We also granted
defendant’s unopposed request to take judicial notice of five exhibits appended to the
request that are parts of the record in defendant’s appeal from the judgment: the first
amended information, the jury instructions, the People’s closing arguments, the minute
order of the verdicts, the transcript of the probation hearing and sentencing.
DISCUSSION
Defendant’s counsel has filed a brief under the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S 738, setting forth
statements of the case and facts. Counsel suggests three potentially arguable issues:
(i) what procedures are appointed counsel and the court of appeal required to follow
when counsel determines that an appeal from an order denying postconviction relief lacks
arguable merit; (ii) whether the trial court erred when it denied defendant’s petition for
relief under section 1170.95; and, (iii) whether the trial court’s denial of appellant’s
petition constituted prejudicial error.
Counsel states this court is required to undertake a review of the entire record.
When, in an indigent defendant’s first appeal of right, appointed appellate counsel files
an opening brief that does not present an arguable issue, it is well settled that the
appellate court must offer the defendant an opportunity to submit a personal supplemental
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brief and to review the entire record whether or not the defendant files a brief. (Wende,
supra, 25 Cal.3d at pp. 441-442.)
We acknowledge People v. Cole (2020) 52 Cal.App.5th 1023, 1032, (Cole) review
granted October 14, 2020, S264278, held the constitutional bases for Wende procedures
apply only to a defendant’s direct appeal from the judgment. We also recognize that we
have discretion to exercise our inherent supervisory powers to apply Wende procedures to
appeals from denials of postconviction relief in which appointed appellate counsel files a
no-issues brief. Accordingly, appellate courts have traditionally afforded defendants an
opportunity to personally file a supplemental brief when appointed counsel has submitted
a no-issues brief in a postjudgment appeal. (People v. Scott (2020) 58 Cal.App.5th 1127,
1131 (Scott), review granted Mar. 17, 2021, S266853.)
Appellate courts are divided, however, with respect to whether we should exercise
our discretion to conduct an independent review of the record if a defendant does not
respond to an invitation to file a supplemental brief. (E.g., Cole, supra, 52 Cal.App.5th at
pp. 1038-1039 [Second Dist., Div. Two, no independent review of record when no
supplemental brief filed, dismissed the appeal as abandoned]; People v. Flores (2020) 54
Cal.App.5th 266, 269, 273-274 [Fourth Dist., Div. Three conducted independent review
of record even though defendant did not file a supplemental brief].)
Recent opinions issued by this court reflect the division in approach to the
situation in which defendant does not file a supplemental brief. In Scott, one panel
concluded there is no reason to conduct an independent review of the record or to issue
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an opinion in such a case and dismissed the appeal as abandoned. (Scott, supra, 58
Cal.App.5th at pp. 1131-1132 (but see dis. opn. of Miller, J.); accord People v. Figueras
(2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870.)
In People v. Gallo (2020) 57 Cal.App.5th 594 (Gallo), another panel of this court
concluded the interests of justice call for independent review of the record in
postjudgment no-issue appeals even if the defendant has not filed a supplemental brief.
(Id. at p. 599 (but see dis. opn. of Menetrez, J.); accord People v. Flores (2020) 54
Cal.App.5th 266, 269 [when an appointed counsel files a Wende brief in an appeal from a
summary denial of a section 1170.95 petition, reviewing court is not required to
independently review the entire record, but the court can and should do so in the interests
of justice]; see People v. Allison (2020) 55 Cal.App.5th 449, 456 [court of appeal has the
discretion to review the record in the interests of justice].)
We respectfully disagree with Scott and find the procedure in Gallo provides
indigent defendants an additional layer of due process while consuming comparatively
little in judicial resources.
Here, we offered defendant an opportunity to file a personal supplemental brief,
which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th
106, and in keeping with Gallo, supra, 57 Cal.App.5th 594, we have independently
reviewed the record for potential error and find no arguable issues.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
FIELDS
J.
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