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SB 1437 – What if No Issue Appeal Brief Filed?

In 2014, after a jury convicted Raymond Griffin in Riverside Superior Court of two counts of first-degree murder (Penal Code § 187(a)) with gang and multiple-murder special circumstances (Penal Code §§ 190.2(a)(3), (a)(22)), and was sentenced to four consecutive life terms (two without the possibility of parole, his conviction and sentence was affirmed on appeal.
One issue on appeal was a claim that the evidence was insufficient to support the jury’s finding that he was the shooter, but the appellate court disagreed and affirmed the conviction.
In 2018, the Legislature enacted Senate Bill 1437, which amended Penal Code § 188 and Penal Code § 189 to eliminate criminal liability for murder under the natural and probable consequences doctrine and to limit application of the felony murder rule to those persons who were either the actual killer, or acted with the intent to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life.
The Legislature also added Penal Code § 1172.6 to establish a procedure whereby defendants convicted of murder prior to amendment to petition the trial court to vacate their sentence and be resentenced if they met the following conditions:
  1. They were charged in a manner that allowed the People to proceed under a theory of murder under the natural and probable consequences doctrine;
  2. They were convicted of first or second murder under one of those theories; and
  3. They could not now be convicted of first or second degree murder because of amendments to §§ 188 and 189.
In 2022, Mr. Griffin petitioned for resentencing under Senate Bill 1437, as provided in Penal Code § 1172.6 (effective, June 30, 2022, renumbered as former Penal Code § 1170.95).
The Riverside Superior Court judge assigned to his petition denied it because Mr. Griffin was the actual shooter and Mr. Griffin appealed to the Fourth Appellate District. It merits mention that in Mr. Griffin’s underlying conviction in Riverside Superior Court, the jury found true that he caused death of another by personally and intentionally discharging a firearm (Penal Code § 12022.53(d).
Defendant’s appointed counsel filed an opening brief that set forth the statement of the case, but did not raise any issues. In the brief, he acknowledged that this was not Mr. Griffin’s first appeal of right, so the Fourth Appellate District was not required to conduct an independent review under People v. Wende (1979) 25 Cal. 3d 436 of the record to determine if it contained any arguable issues, but asked that the appellate court exercise its discretion and do so.
As the reader may be aware, Wende set forth procedures that were adopted to ensure the protection of indigent criminal defendants’ constitutional right to effective assistance of appellate counsel.
The Fourth Appellate Court required procedures set forth in Wende and offered Mr. Griffin an opportunity to submit a personal supplemental brief.
Mr. Griffin thereafter did not respond, but the appellate court did independently review the entire record for any potential errors or arguable errors that constituted an appealable issue. It found no appealable issues in its review.
Therefore, the appellate court directed that an appellate court, in finding no issues and when defendant does not file a personal supplemental brief, it should issue a concise, unpublished opinion affirming the trial court’s ruling and explaining the reason for the decision for the benefit of defendant and counsel. People v. Kelley (2006) 40 Cal. 4th 106, 118-120.
We offer this summary because we believe it is common for a defendant convicted of first or second degree murder (or even attempted murder or manslaughter under Senate Bill 775) to file a petition for resentencing under Penal Code §1170.26 even when their conviction was not under a felony murder theory or the natural and probable consequences doctrine. We find that many defendants do not know under what theory of murder they were convicted, but they file an SB 1437 petition anyways and when it is denied, appeal even when there are no arguable issues for appeal.
For more information about Wende brief issues, please click on the following articles:
  1. Does Wende Apply to Appeal Denying 1170.95 Relief?
  2. Under Wende, Appellate Court Duties after 1437 Denial?
  3. Is There a Wende Right if Court Denies First Appeal?
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