Filed 11/7/22 P. v. Young CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B317740
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. BA196110)
v.
EARL K. YOUNG,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Charlaine F. Olmedo, Judge. Affirmed.
Earl K. Young, in propria persona; and Marta I. Stanton,
under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
____________________________
Earl Young was convicted of murder and attempted
premeditated murder, among other convictions, based on his
participation in a 1999 home invasion. In 2021, Young asked the
trial court to set aside his murder and attempted murder
convictions under Penal Code, section 1172.61 and to allow him to
be present for all further section 1172.6 proceedings.2 The trial
court reviewed Young’s record of conviction and determined that,
as the actual shooter in the incident, Young had not made the
prima facie showing required by section 1172.6. On that basis,
the trial court denied Young’s section 1172.6 petition, and this
appeal followed. Based on our independent review of the record
under People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), we
affirm the trial court’s orders.
BACKGROUND
Earl Young murdered Carlos Amador (by shooting him in
the head) and attempted to murder Carlos’s brother, Jorge, when
Young and a codefendant robbed the Amadors’ home on
November 13, 1999.3 (People v. Young (Jan. 31, 2005, B168977)
1 “This provision was originally codified as Penal Code
section 1170.95 . . . . In the wake of [the Supreme Court’s]
decision in People v. Lewis [(2021) 11 Cal.5th 952], the
Legislature amended section 1170.95 to adopt certain of Lewis’s
holdings. (Stats. 2021, ch. 551, § 1, subd. (b).) The Legislature
later renumbered the provision without substantive change,
effective June 30, 2022. (Stats. 2022, ch. 58, § 10.)” (People v.
Strong (2022) 13 Cal.5th 698, 708, fn. 2.)
2 Further statutory references are to the Penal Code.
3We have used the Amadors’ first names for convenience
and clarity; we intend no disrespect.
2
[nonpub. opn.], at p. 3 (Young I).) A jury convicted Young of
murder, attempted premeditated murder, and multiple counts of
robbery and attempted robbery, and found true various
allegations of firearm use and special circumstances. (Id. at p. 2.)
On Young’s direct appeal, we struck a multiple murder
special circumstance finding because the trial court declared a
mistrial on a second murder count after the jury deadlocked, and
we ordered the abstract of judgment to be corrected regarding the
sentence on Young’s attempted murder and attempted robbery
convictions. (Young I, supra, B168977, at p. 8.) We affirmed the
judgment in all other respects. (Ibid.)
In 2021, Young filed a petition for resentencing under
section 1172.6 stating that Young had been convicted of first or
second degree murder pursuant to the felony murder rule or the
natural and probable consequences doctrine, that he could not
now be convicted of first or second degree murder because of
changes made to sections 188 and 189 effective January 1, 2019,
that he was not the actual killer, that he “did not, with the intent
to kill, aid, abet . . . or assist the actual killer,” that he “was not a
major participant in the felony” and that he “did not act with
reckless indifference to human life during the course of the crime
or felony.” Young requested that the trial court appoint counsel
for him.
The trial court appointed counsel for Young. The trial
court held two hearings regarding Young’s section 1172.6
petition. At a hearing on September 24, 2021, the trial court
confirmed with counsel for Young that “Mr. Young . . . was found
true to have personally fired the shot that killed the
individual . . . .” At Young’s attorney’s request, the trial court
granted Young an opportunity to brief whether the trial court
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was permitted to look beyond the face of Young’s section 1172.6
petition to determine whether Young had met his burden of
establishing a prima facie claim for relief. Young’s counsel also
requested the opportunity to brief whether Young was entitled to
be present for the section 1172.6 proceedings.
The trial court again called Young’s matter for hearing on
January 20, 2022. After hearing argument both on a motion to
allow Young to be present in court for the section 1172.6
proceedings and on Young’s section 1172.6 petition, the trial
court denied both. The trial court concluded that the hearing was
not a “critical stage of the proceedings,” but rather was about “a
preliminary legal question of whether or not [Young] is even
eligible for the relief he seeks [under section 1172.6] and his
presence would not contribute to defending against the charges or
fairness of the proceedings.” The trial court then explained at
length that based on the record of Young’s conviction it would
deny Young’s section 1172.6 petition because he had failed to
make the prima facie showing required under section 1172.6.
Specifically, the trial court stated: “In this particular case . . . the
court is looking at the record of conviction including its prior
orders in finding that the defendant here is the actual shooter,
and thereby his culpability for the murder still is viable under
any of the amendments set forth by Senate Bill 1437, that he had
actual malice and that he is ineligible as a matter of law for relief
under [1172.6].”
Young filed a timely notice of appeal.
This court entered an order appointing counsel for Young.
After examination of the record, counsel filed an opening brief
raising no issues and asking this court to follow the procedures
4
set forth in People v. Wende (1979) 25 Cal.3d 436.4 On July 7,
2022, we sent a letter to Young and his appointed counsel
advising Young that within 30 days he could personally submit
any contentions or issues he wanted us to consider, and directing
counsel to send the record and opening brief to Young
immediately.
Young filed a supplemental brief raising two contentions,
which we address below.
DISCUSSION
On this appeal, Young contends that this case “has always
been about identification”—that he was not the person who
committed the crimes for which he was convicted, and that his
conviction resulted from due process violations in the way the
police handled his lineup. Young also argues that the two
murder charges—the one for which he was convicted and the one
on which the jury deadlocked—should not have been tried
together because trying them together “bolstered the
prosecution[’]s case,” presumably leading to Young’s convictions
on the remaining charges.
The arguments that Young presents in his supplemental
brief here are arguments that should have been raised and
considered on Young’s direct appeal. Indeed, the first section of
the discussion in the opinion on Young’s direct appeal deals with
his motion to sever the second murder count—for the November
4Because the appeal before us is not a “first appeal of right
from a criminal prosecution” and is, therefore, “not entitled to . . .
Wende review when appointed counsel finds no arguable issues
on appeal,” we deem the request to have been made—and conduct
our review—pursuant to Serrano (2012) 211 Cal.App.4th 496,
501, 503.
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3, 1999 murder of Manuel Martinez—from the “crimes at the
Amador house on November 13.” (Young I, supra, B168977, at p.
4.) On that appeal, we concluded that “there was no ‘reasonable
probability that the joinder affected the jury’s verdicts.’ ” (Id. at
p. 6.)
The issues regarding Young’s lineup were also dealt with
on his direct appeal, albeit in a slightly different context. In
advance of his lineup, the trial court ordered Young to shave so
that he would appear at his lineup clean shaven. (Young I,
supra, B168977, at p. 6.) Young refused and resisted deputies’
attempt to shave him after he violated the trial court’s order.
(Ibid.) In our opinion on Young’s direct appeal, we said that “it
was reasonable to infer that [Young] attempted to present
himself at the lineup with an appearance other than the one that
was required by court order and that this conduct was indicative
of a consciousness of guilt.” (Young I, supra, B168977, at p. 7.)
Whether the two contentions Young raises here were fully
litigated on his direct appeal, they could have been. Those
contentions represent an improper collateral attack on the
judgment and are generally no longer cognizable. (In re Robbins
(1998) 18 Cal.4th 770, 814, fn. 34.)
We are satisfied that Young’s counsel complied with the
responsibilities Serrano, supra, 211 Cal.App.4th 496 imposes.
Additionally, we have considered and rejected the contentions
Young raises in his supplemental brief, and have reviewed the
entire record and found no arguable issues. We affirm the trial
court’s orders.
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DISPOSITION
The trial court’s orders are affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
WEINGART, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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