People v. Smith CA4/2

Filed 1/5/23 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E079569

v. (Super.Ct.No. RIF74491)

ROBERT LEE SMITH, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Walter H. Kubelun,

Judge. Dismissed.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

Robert Lee Smith appeals from the denial of his petition to vacate his first degree

murder conviction. (See Pen. Code, § 1172.6.)1 His appointed counsel could not identify

any arguable issue. We gave him notice of that fact, and we gave him an opportunity to

1 All further statutory citations are to the Penal Code.

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file a personal supplemental brief, but he has not done so. Admittedly, under the

Supreme Court’s recent decision in People v. Delgadillo (2022) ___ Cal.5th ___ [2022

Cal. LEXIS 7654] (Delgadillo), our notice was “suboptimal.” (Id. at p. *3.)

Accordingly, out of an excess of caution, we have carried out an independent review of

the record. However, we, too, cannot identify any arguable issue. Hence, we will

dismiss.

STATEMENT OF FACTS

According to our opinion in petitioner’s direct appeal, in 1996, petitioner and two

accomplices robbed a market. “[Petitioner] was interrogated and admitted participating

in the robbery and shooting [the store owner]. He made the same admissions during a

surreptitiously recorded conversation with [his accomplices] . . . .” (People v. Smith

(2004) 2004 Cal. App. Unpub. LEXIS 11601 at pp. *2-*3 [nonpub. opn.].) The

probation report confirms that petitioner confessed to participating in the robbery and to

shooting the victim.

STATEMENT OF THE CASE

In 2002, a jury found petitioner guilty of first degree murder (§ 187, subd. (a))

with an armed principal enhancement (§ 12022, subd. (a)(1)), a personal firearm use

enhancement (§ 12022.5, subd. (a)), and a robbery-murder special circumstance (§ 190.2,

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subd. (a)(17)(1)). Appellate counsel concedes that petitioner was convicted on a felony

murder theory. He was sentenced to life without the possibility of parole plus five years.

In 2004, we affirmed the judgment. (People v. Smith, supra, 2004 Cal. App.

Unpub. LEXIS 11601.)

In July 2022, petitioner filed a petition to vacate his murder conviction and to be

resentenced under section 1172.6.2 At a status conference, the trial court appointed

counsel, then heard argument.

The prosecutor represented that petitioner “admitted to police . . . that he shot the

victim.” He added that our opinion so stated. Defense counsel said, “I confirm what

counsel has said, . . . and I’ll submit.”

The trial court said, “The Court has clarified to its own education on the facts

presented by the People.” It denied the petition because petitioner was the actual killer.

(§ 189, subd. (e)(1), 1172.6, subd. (d)(3).)

III

DISCUSSION

Petitioner’s appointed appellate counsel has filed a “no-issue” brief, purportedly

pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We offered petitioner an

opportunity to file a personal supplemental brief, but he has not done so.

2 The petition cited former section 1170.95. (Enacted by Stats. 2018, ch.
1015, § 4, amended by Stats. 2021, ch. 551, § 2.) Five days before it was filed, however,
section 1172.6 went into effect. It renumbered former section 1170.95, with no change in
text. (Stats. 2022, ch. 58, § 10.)

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In an appeal from the denial of a section 1172.6 petition, Wende does not apply;

we are not required to independently review the record in search of error. (Delgadillo,

supra, 2022 Cal. LEXIS 7654 at pp. *7-*20.) Rather, if the petitioner has declined to file

a personal supplemental brief, the appeal should be dismissed as abandoned. (Id. at

pp. *3, *21-*22.)

Here, however, as in Delgadillo itself, the notice to petitioner was “suboptimal” in

two respects — “it indicated that the Wende procedures would apply when they did not,

and it did not inform [petitioner] that the appeal would be dismissed as abandoned if no

supplemental brief or letter was filed.” (Delgadillo, supra, 2022 Cal. LEXIS 7654 at

p. *3.) However, also as in Delgadillo, “we determine, based on our independent review

of the record, that [petitioner] is not entitled to any relief under section 1172.6,” because

he was the actual killer. (Id. at p. *24.)

Counsel indicates that he considered two issues.

First, did the trial court err by relying on facts set forth in our previous opinion?

In general, the trial court can consider the record of conviction. (People v. Lewis (2021)

11 Cal.5th 952, 970-971.) However, it can consider a prior appellate opinion only as

evidence of the procedural history of the case, not as evidence of the underlying facts.

(§ 1172.6, subd. (d)(3); People v. Clements (2022) 75 Cal.App.5th 276, 292.) Here, it is

not clear that the trial court did rely on our previous opinion. The prosecutor stated, as a

fact, that petitioner was the actual killer; then, he also stated that, according to our

opinion, petitioner was the actual killer. Finally, the trial court indicated that it had

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independently verified counsel’s representations. Thus, the prosecutor and/or the trial

court may have been relying on the entire record, not solely on our previous opinion.

Moreover, the prosecutor and defense counsel both agreed that petitioner was the

actual killer. The trial court could properly rely on their agreement as tantamount to a

stipulation. Thus, it had no need to consider our previous opinion at all.

And finally, the asserted error was harmless. It appears that petitioner was the

actual killer. Thus, even if the trial court had considered the whole record, it would have

come to the same conclusion.

Second, did appointed counsel render ineffective assistance by agreeing that

petitioner was the actual killer? Again, because it appears that he was the actual killer,

counsel’s agreement was not ineffective assistance, because it did not fall below an

objective standard of reasonableness (see People v. Lewis, supra, 11 Cal.5th at p. 968

[counsel may suggest that meritless petition be withdrawn]), and because it did not

adversely affect the outcome of the proceeding. (See generally People v. Ng (2022) 13

Cal.5th 448, 522.)

We have considered a third issue: Did the trial court err by denying the petition

summarily, without requiring the prosecution to file a response and without allowing

petitioner to file a reply? (See § 1172.6, subd. (c).) Not allowing the prosecution to file a

response could not have prejudiced petitioner. And, yet again, because it appears that

petitioner was the actual killer, not allowing him to file a reply likewise could not have

prejudiced him.

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We have found no other conceivable — much less arguable — issue.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:

CODRINGTON
J.

SLOUGH
J.