Filed 8/31/23 P. v. Marsh CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081159
Plaintiff and Respondent,
v. (Super. Ct. No. CR59191)
DENIS PAUL MARSH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Peter C. Deddeh, Judge. Affirmed.
Denis Paul Marsh, in pro. per.; and Rex Adam Williams, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 1983, following a court trial, Denis Paul Marsh was convicted of first
degree murder (Pen. Code,1 § 187, subd. (a)); conspiracy to commit burglary
(§§ 182.1 & 459); robbery (§ 211); and arson (§ 451, subd. (b)). The court
found Marsh personally used a weapon and personally inflicted great bodily
1 All further statutory references are to the Penal Code.
injury. Marsh was sentenced to an indeterminate term of 26 years to life in
prison.
In 2019, Marsh filed a petition for resentencing under section 1170.95
(now renumbered section 1172.6). The trial court appointed counsel, received
briefing, and held a hearing. Relying in part on an earlier opinion of this
court in Marsh’s first appeal, the court found Marsh was an active
participant in the murder and denied the petition. Marsh appealed, and this
court reversed the order denying the petition. We remanded the case to the
trial court with directions to issue an order to show cause and conduct an
evidentiary hearing. (People v. Marsh (Aug. 31, 2021, D078224) [nonpub.
opn.)
On remand, the trial court held an evidentiary hearing. The court
received the record of conviction including the trial transcript. Marsh called
witnesses including the codefendant, who was by then out of prison. The
codefendant recanted his earlier statements and testified he alone was
responsible for the murder.
The court found, beyond a reasonable doubt, that Marsh was the actual
killer of the victim, stabbing her with the intent to kill. The court again
denied the petition.
Marsh filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Delgadillo
(2022) 14 Cal.5th 216 (Delgadillo) indicating counsel has not been able to
identify any potentially meritorious issues for reversal on appeal. Counsel
asks the court to exercise its discretion to independently review the record for
error in the same manner as we would in an appeal under People v. Wende
(1979) 25 Cal.3d 436 (Wende). We notified Marsh of his right to file his own
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brief on appeal. Marsh has responded by filing a supplemental brief. We will
discuss his brief later in this opinion.
STATEMENT OF FACTS
Appellate counsel has submitted an accurate summary of the factual
material submitted during the evidentiary hearing. We will incorporate that
summary here for background information.
Jeffrey Inglett, Marsh’s codefendant, was with Marsh in 1983 at the
time of the offenses, and was convicted of first degree felony murder. Inglett
was drinking and met Marsh at an apartment, where he and Marsh, as well
as others, were consuming methamphetamine. Inglett was aware of a house
in the neighborhood, where A.W. lived, that had been burglarized, where
there was a lot of money. Marsh said he had burglarized the house before,
and Inglett and Marsh decided to burglarize it again. Inglett and Marsh
arrived at the house and Inglett broke a window. The two entered the house
and Inglett ran into A.W. Marsh was behind Inglett. Inglett held a knife to
A.W.’s throat and told her not to scream or he would kill her, but A.W.
screamed, so Inglett cut her throat with the knife, severing her head to the
point it almost came off her body. Inglett then began stabbing her in the
chest. Inglett slipped and fell with A.W., causing her head to hit a table.
Inglett and Marsh had not planned to harm A.W.
Marsh helped Inglett carry A.W., who Inglett did not think was alive at
this point, to the couch. A.W. was not breathing and did not have a pulse,
and Inglett continued to stab her. Marsh grabbed Inglett’s arm and told him
to stop. Inglett realized that if he did not make Marsh become a participant
in the murder, Marsh might tell, so he gave Marsh the knife and told him he
needed to stab A.W. Marsh was reluctant, but Inglett pressured him, so
Marsh took the knife and stabbed her a couple of times; she was not alive at
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this point. Concerned about leaving evidence behind, Inglett used his lighter
to light newspaper behind the couch on fire. Inglett and Marsh fled back to
the apartment they had been at, where they went into a stairwell “to count
the money.” When they encountered a paper boy, Inglett threatened to kill
him if he told anyone what he had seen.
About six or eight months before the evidentiary hearing, Marsh called
Inglett and asked him if he would be willing to help him at the hearing.
Inglett said he would tell the same story he told the parole board, explaining
the details of the crime. Inglett’s testimony at the hearing was different from
what he told the police when he was arrested about a month after the
murder, when he denied being involved.
When confronted with a recording of Marsh’s statement, Inglett
minimized his guilt, saying he had been hit over the head when he entered
the house and did not remember anything else. He told them that when he
awoke after being struck, he saw Marsh stabbing A.W. He said Marsh did all
of the stabbing because he wanted to avoid being charged. He was trying to
minimize his guilt. Prior to his sentencing, he repeated his claims to the
probation officer to minimize his guilt.
Marsh or another person had given Inglett the knife.
DISCUSSION
As we have noted, appellate counsel has filed a brief pursuant to
Delgadillo and asks the court to exercise its discretion to independently
review the record to determine if there are any potentially meritorious issues
presented that could justify reversal on appeal. We have reviewed the record
for error, but have not discovered any potentially meritorious issues.
We have reviewed Marsh’s supplemental brief for possible meritorious
issues. We note that at the evidentiary hearing the codefendant, now out of
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custody, was called by Marsh to “help him.” The codefendant recanted his
prior statements and now takes the blame for the gruesome murder. The
trial court obviously did not believe the new version of events presented some
40 years after the crime. In the face of the exonerating testimony the court
found, to the contrary, that the People had proved Marsh was the actual
killer.
In his supplemental brief, Marsh argues the court erred in not
believing the new version of the events. Marsh does not persuasively identify
any reason that we should second-guess the trial judge who heard the actual
testimony. We do not make credibility assessments on appeal. Determining
credibility of and the weight to be given to evidence is the province of the trial
court. Nothing in this record provides any reason to reject the court’s
assessment of the facts.
Competent counsel has represented Marsh on this appeal.
DISPOSITION
The order denying Marsh’s petition for resentencing under
section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
BUCHANAN, J.
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