Filed 1/31/23 P. v. Smith CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

KEENAN K. SMITH,

Defendant and Appellant.

B323003

(Los Angeles County

Super. Ct. No. BA371222)

APPEAL from an order of the Superior Court of Los 

Angeles County, Renee F. Korn, Judge. Affirmed.

Sally Patrone, under appointment by the Court of Appeal,

for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳
2

Keenan Smith appeals from an order denying his petition 

for resentencing under Penal Code1 section 1172.6.

2 His 

appellate counsel filed a brief under People v. Wende (1979) 25 

Cal.3d 436 (Wende), asking us to independently review the 

appeal. Exercising our discretion to independently review the 

record (People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo)),

3

we conclude that the trial court properly denied the petition.

In its order denying Smith’s petition, the trial court 

summarized the facts as follows. In 2009, Edison Armstrong

broke up a fight between Smith’s wife and another woman. The 

1 All further undesignated statutory references are to the 

Penal Code.

2 Effective June 30, 2022, section 1170.95 was renumbered to 

section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)

3 While this matter was pending on appeal, our California 

Supreme Court issued Delgadillo, supra, 14 Cal.5th 216. The 

court held that the procedures in Anders v. California (1967) 386 

U.S. 738 and Wende do not apply to appeals from the denial of 

postconviction relief under section 1172.6. The court instructed 

that on appeal from an order denying section 1172.6 relief, a 

counsel who finds no arguable issue should file a brief informing 

the appellate court of that determination and include a concise 

factual recitation. (Delgadillo, at pp. 231–232.) The appellate 

court shall send a copy of the brief to the defendant informing the 

defendant of the right to file a supplemental brief and that if one 

is not filed within 30 days, the court may dismiss the matter. 

(Ibid.) If a supplemental brief is filed, we must evaluate the 

contentions in it. (Id. at p. 232.) If a supplemental brief is not 

filed, we may dismiss the appeal as abandoned without a written 

opinion. (Ibid.) However, we retain discretion to independently 

review the record. (Ibid.)
3

next day, Smith nearly hit Armstrong with his car, pointed a gun 

at Armstrong, and shot at Armstrong as he ran away. A week 

later, Smith drove to Armstrong’s house and fired several shots 

at him. 

In 2010, a jury found Smith guilty of two counts of 

attempted murder (§ 187, subd. (a), counts 1 & 2) and one count 

of possession of a firearm by a felon (§ 12021, subd. (a)(1); count 

3). As to the attempted murder counts, the jury found that Smith 

personally used and discharged a gun (§§ 12022.5 subd. (a); 

12022.53, subd. (c)). The jury found true the allegation that the 

attempted murder charged in count 2 was premeditated and 

deliberate but found the same allegation not true as to count 1. 

On May 23, 2011, the trial court sentenced Smith on count 

2 to life with a minimum parole eligibility period of seven years, 

doubled to 14 years due to a prior strike that had been found 

true, 20 years for the gun enhancement (§ 12022.53, subd. (c)),

and five years for a prior conviction (§ 667, subd. (a)). The trial 

court imposed concurrent sentences on counts 1 and 3 and 

imposed and stayed terms on the remaining enhancements. 

In 2022, Smith petitioned for resentencing on his 

attempted murder convictions under section 1172.6. The trial 

court appointed counsel to represent Smith. The People opposed 

the petition on the ground that Smith was not prosecuted under 

the natural and probable consequences doctrine. In support, the 

People submitted the jury instructions from Smith’s trial. The 

trial court held a hearing on the petition at which Smith was not 

present and at which his counsel submitted on his papers. 

On June 3, 2022, the trial court found that Smith was 

ineligible for relief as a matter of law and denied the petition. 
4

This appeal followed. Court-appointed appellate counsel 

filed an opening brief that raised no issues and asked this court 

to independently review the record under Wende, supra, 25 

Cal.3d 436. We directed appellant’s counsel to send Smith the 

record and a copy of the opening brief, and we advised that 

within 30 days of the date of the notice, Smith could submit a 

supplemental brief or letter stating any grounds for an appeal, or 

contentions, or arguments he wished this court to consider. 

However, the notice was defective because it did not inform 

Smith that if he did not submit a supplemental brief, his appeal 

could be dismissed as abandoned. (Delgadillo, supra, 14 Cal.5th 

at pp. 233-234.) Therefore, as did the court in Delgadillo, we 

exercise our discretion and independently review the record. 

Senate Bill No. 1437 (2017–2018 Reg. Sess.) limited 

accomplice liability under the felony-murder rule, eliminated the 

natural and probable consequences doctrine as it relates to 

murder, and eliminated convictions for murder based on a theory 

under which malice is imputed to a person based solely on that 

person’s participation in a crime. (§ 1172.6, subd. (a) [added by 

Sen. Bill No. 1437]; People v. Lewis (2021) 11 Cal.5th 952, 957, 

959; People v. Gentile (2020) 10 Cal.5th 830, 842–843.) Senate 

Bill No. 1437 added section 189, subdivision (e) (limiting 

application of the felony-murder rule) and section 188, 

subdivision (a)(3) (stating that “[m]alice shall not be imputed to a 

person based solely on his or her participation in a crime.”). As 

amended, section 188 “bars a conviction for first or second degree 

murder under a natural and probable consequences theory.” 

(Gentile, at p. 846.) Senate Bill No. 775 (2021–2022 Reg. Sess.) 

(Stats. 2021, ch. 551) expanded Senate Bill No. 1437 to include 
5

convictions for attempted murder under the natural and probable 

consequences doctrine.

As the trial court found, Smith’s jury was not instructed on 

felony murder, the natural and probable consequences doctrine, 

aiding and abetting, or any other theory under which malice 

could be imputed to him based on his participation in the crime. 

(§ 1172.6, subd. (a).) The jury also found true personal gun use 

allegations (§§ 12022.5 subd. (a); 12022.53, subd. (c)) and a 

premeditation allegation as to count 2. The record therefore 

shows that Smith was the sole participant in the crime and the 

actual attempted killer. (See, e.g., Delgadillo, supra, 14 Cal.5th 

at p. 233 [defendant ineligible for § 1172.6 relief where record 

made clear Delgadillo was actual killer and only participant in 

the killing].)
6

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

NGUYEN (KIM), J.*

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.