Filed 2/17/23 P. v. Kuikahi 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E079667
v. (Super.Ct.No. PEF00593)
ROBERT THOMAS KUIKAHI, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant, Robert Thomas Kuikahi, filed a petition for resentencing
pursuant to Penal Code former section 1170.95, 1 which the court denied. After defense
counsel filed a notice of appeal, this court appointed counsel to represent him.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders),2 setting forth a
statement of the case and two potentially arguable issues: (1) whether the trial court
erred by denying defendant’s petition without issuing an order to show cause and holding
an evidentiary hearing; and (2) whether the trial court followed the proper procedures in
adjudicating defendant’s petition.
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND 3
On November 25, 1996, defendant, an admitted gang member, was the passenger
of a van that pulled up in front of a group of three teenagers leaning against a truck.
1 All further statutory references are to the Penal Code unless otherwise indicated.
Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended
and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
2 In People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), the California
Supreme Court recently held that Wende and Anders procedures do not apply in appeals
from the denial of a section 1172.6 postjudgment petition. (Delgadillo, at pp. 224-226.)
3 On the court’s own motion, we take judicial notice of this court’s opinion from
defendant’s appeal of the judgment (People v. Kuikahi (Dec. 22, 1998, E021053)
[nonpub. opn.] (Kuikahi)). (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule
8.1115(b)(1).)
2
Defendant opened the sliding door, asked where they were from, pulled out a “long”
firearm, and fired six shots. (Kuikahi, supra, E021053.) Two individuals were struck;
one in the back and the other in one finger. (Ibid.)
On May 21, 1997, a jury convicted defendant of deliberate, premediated,
attempted murder (§§ 664, 187, count 2) and found true an allegation that defendant
personally used a firearm in his commission of the count 2 offense (§§ 12022.5, subd. (a),
1192.7, subd. (c)(8)). The jury hung on the count 1 offense of murder. On August 8,
1997, the court sentenced defendant to four years, plus life with the possibility of parole.
On December 22, 1998, this court affirmed the judgment holding that sufficient evidence
supported his conviction for deliberate, premediated, attempted murder. (Kuikahi, supra,
E021053.)
On June 1, 2022, defendant filed a form petition for resentencing pursuant to
former section 1170.95.4
4 Defendant later submitted several motions pursuant to People v. Franklin (2016)
63 Cal.4th 261 (Franklin). Franklin permits early parole eligibility to a person who was
a “youth offender” when he committed an offense for which he was convicted, and whom
the court sentenced to an indeterminate term of 25 years to life or greater. (Id. at p. 277;
see section 3051, subds. (a)(1), (b)(1)-(4).) Defendant was 18 years old when he
committed the crime in the instant case. However, the court sentenced defendant to four
years, plus life with the possibility of parole.
The court initially ordered that no action be taken on the first Franklin motion.
The court later assigned the matter to the criminal defense panel of the indigent defense
program. However, there is no indication in the record that the Franklin matter was ever
resolved. Nevertheless, defendant’s appeal specifies that it is from the court’s denial of
his former section 1170.95 petition, not any ruling, or failure to rule on, his Franklin
motions.
3
On August 19, 2022, at the hearing on the petition, the People noted that after a
review of the file, “[t]he defendant was the shooter in a drive-by in 1997. The jury hung
on a murder charge, but found him guilty of attempted murder with gang and personal
firearms use allegations. The instructions were also sent on 8/17/22. Nothing regarding
aiding and abetting, natural and probable consequences, or felony murder were given.
The defendant is statutorily ineligible, and we ask that this petition be denied.” Defense
counsel responded, “I have confirmed what counsel has provided to me. I submit.” The
court denied the petition.
II. DISCUSSION
Here, on December 15, 2022, we issued a “suboptimal” order, which included a
reference to Wende; this implied that we would independently review the record for
potential errors even if defendant chose not to file a supplemental brief. (Delgadillo,
supra, 14 Cal.5th at p. 230, 232.) Therefore, we exercise our discretion to do so even
though not required. (Delgadillo, supra, 14 Cal.5th at p. 230 [“[I]f the appellate court
wishes, it may also exercise its discretion to conduct its own independent review of the
record in the interest of justice.”]; id at p. 232 [“[I]t is wholly within the court’s discretion
[to] conduct[] its own independent review of the record in any individual section 1172.6
appeal.”] id. at p. 233, fn. 6 [“[T]he decision to conduct independent review is solely up
to the discretion of the Courts of Appeal . . . .].) We find no arguable issues.
4
III. DISPOSITION
The order denying defendant’s petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
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