Filed 3/23/22 P. v. Carnell CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B315035
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA075517)
v.
ANTHONY CARNELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Lillian Vega Jacobs, Judge. Affirmed.
Johanna R. Pirko, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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In February 2003, defendant and appellant Anthony
Carnell was involved, along with three codefendants, in a gang-
related shooting that resulted in the death of an innocent
bystander. Defendant and two of his fellow gang members, along
with a female associate who drove them, were attempting to
retaliate for the earlier shooting of another member of their gang.
Once they arrived outside the home where they saw the rival
gang members (including Jermaine Booth), defendant and
codefendant Larry Harris got out of the car and both started
shooting. Defendant’s handgun jammed, but Harris emptied his
gun before the two jumped back in the car and they fled the
scene. One of the bullets struck and killed an innocent
bystander, Betty Jean Rothchild.
Defendant and his codefendants were charged with
multiple felonies, including the murder of Ms. Rothchild and the
attempted murder of Mr. Booth. Various special allegations were
pled, including that the crimes were committed for the benefit of,
at the direction of, or in association with a criminal street gang.
After defendant and his codefendants were arrested,
defendant gave a recorded interview acknowledging his role in
the shooting. Defendant entered into a leniency agreement with
the district attorney’s office in which he agreed to plead guilty to
one count of second degree murder and provide truthful
testimony against his codefendants in exchange for a sentence of
15 years to life.
On June 25, 2008, defendant signed a felony advisement
and waiver form, waived his rights on the record and pled guilty
to one count of second degree murder. The court found a factual
basis for the plea. Thereafter, in accordance with the terms of
the leniency agreement, defendant testified in the November
2008 trial against codefendant Harris.
In December 2008, defendant was sentenced to 15 years to
life in prison and credited with 2,417 days of presentence custody
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credits. All remaining counts and special allegations were
dismissed.
In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was
passed. Penal Code section 1170.95 was enacted as part of the
legislative changes effected by Senate Bill 1437 and became
effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
In April 2020, defendant filed in propria persona a form
petition for resentencing pursuant to Penal Code section 1170.95
requesting appointment of counsel and resentencing on the
grounds he was not the actual killer and not a major participant
in the shooting death of Ms. Rothchild. The People filed a
response and attached a copy of defendant’s recorded interview
with detectives in which he admitted participating in the
retaliatory shooting.
The court appointed counsel for defendant and ordered
copies of the preliminary hearing transcripts. At the next
hearing, the court found defendant had stated a prima facie case
and set an order to show cause.
On September 8, 2021, the court held the evidentiary
hearing. The court acknowledged its review of various portions of
the record, including portions of the trial transcripts from the
November 2008 trial of codefendant Harris. The court cited to
various passages from defendant’s testimony in which he
admitted that he and his codefendants intentionally drove to the
scene to take revenge on rival gang members, that he brought his
nine-millimeter handgun and got out of the car to shoot at the
intended victims with Harris, but his gun jammed when he tried
to fire it.
After entertaining argument from counsel, the court denied
defendant’s petition, finding the prosecution had met its burden
to prove beyond a reasonable doubt that defendant could be
convicted under current law of the murder of Ms. Rothchild as a
direct aider and abettor or under a theory of conspiracy to commit
murder.
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This appeal followed.
We appointed appellate counsel to represent defendant.
Defendant’s appointed counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were
raised. The brief included a declaration from counsel that she
reviewed the record and sent a letter to defendant explaining her
evaluation of the record. Counsel further declared she advised
defendant of his right, under Wende, to submit a supplemental
brief within 30 days, and forwarded copies of the record to
defendant. No supplemental brief was filed.
Defendant’s counsel filed a motion to augment the record,
attaching copies of trial transcripts from the trial of codefendant
Harris in which defendant testified. We grant defendant’s
request to augment.
There is currently a split in the appellate courts as to
whether a reviewing court must engage in independent review for
error when counsel files a Wende brief from a postjudgment
appeal from a resentencing petition. Some courts have concluded
that discretionary review is appropriate irrespective of whether
the defendant files a supplemental brief. (See, e.g., People v.
Flores (2020) 54 Cal.App.5th 266, 274.)
Other courts have concluded that where, as here, a
defendant chooses not to file a supplemental brief, the Court of
Appeal need not undertake Wende review but may dismiss the
appeal as abandoned. (See, e.g., People v. Cole (2020)
52 Cal.App.5th 1023, 1039; see also People v. Serrano (2012)
211 Cal.App.4th 496, 501 [because a defendant appealing from a
postjudgment denial of a motion to vacate “has no constitutional
right to counsel,” he is not entitled to Wende review when
appointed counsel finds no arguable issues].)
The Supreme Court is now considering the issue, that is
“[w]hat procedures must appointed counsel and the Courts of
Appeal follow when counsel determines that an appeal from an
order denying postconviction relief lacks arguable merit” and
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whether a defendant is “entitled to notice of these procedures.”
(People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.],
review granted Feb. 17, 2021, S266305, 2021 Cal. Lexis 1185.)
Accordingly, pending further guidance from the Supreme
Court, we have determined to exercise our discretion to
independently review the record.
We have examined the entire record of proceedings
submitted to this court, including the requested augmented
material, and are satisfied that appointed counsel fully complied
with her responsibilities in assessing whether or not any
colorable appellate issues exist. We conclude there are no
arguable appellate issues. (People v. Kelly (2006) 40 Cal.4th 106;
Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The order denying defendant’s petition for resentencing is
affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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