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Filed 12/2/22 P. v. Flitcroft CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

CALEB JAMES FLITCROFT,

Defendant and Appellant.

 A164451

 (Mendocino County

 Super. Ct. No.

SCUK-CRCR-05-68281-2)

An indigent criminal defendant is entitled to his or her first appeal as 

of right. (In re Sade C. (1996) 13 Cal.4th 952, 985–986.) Here, we face the 

third appeal brought by defendant Caleb James Flitcroft. In defendant’s first 

appeal (No. A121091), we affirmed the judgment after a jury convicted him of 

second degree murder and attempted voluntary manslaughter and found true 

as to both offenses that he personally discharged a firearm. He was 

sentenced to the maximum term of 40 years to life.

In defendant’s second appeal (No. A158033), we affirmed a 

postconviction order denying his petition for recall and resentencing under 

former Penal Code1 section 1170.95, which has since been renumbered to 

1 All statutory citations herein are to the Penal Code unless otherwise 

indicated.
2

section 1172.62 (hereinafter, first petition). We held as a matter of law that

defendant was ineligible for relief under former section 1170.95 because he 

was the actual killer of the victim, his then girlfriend Brittany Syfert

(hereinafter, Brittany).

Now, defendant appeals another postconviction order, this one denying

his third petition3 for recall and resentencing, under section 1172.6. After 

defendant filed his notice of appeal, appellate counsel appointed to represent 

him filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (People v. 

Wende) in which he raised no issue for appeal and asked this court for an 

independent review of the record. (See People v. Kelly (2006) 40 Cal.4th 106, 

124 (People v. Kelly).) Defendant subsequently exercised his right to file a 

supplemental brief in which he put forth many of the same arguments raised 

in his second appeal—to wit, that the trial court violated his statutory and 

constitutional rights by not appointing counsel to represent him for purposes 

of his petition, by not allowing him to present new evidence, and by 

summarily issuing a denial based on his record of conviction. In addition, 

2 This recall and resentencing provision was originally codified as

section 1170.95. Following the California Supreme Court’s decision in People 

v. Lewis (2021) 11 Cal.5th 952, the Legislature amended section 1170.95 to

codify its holdings. (Stats. 2021, ch. 551, § 1, subd. (b), No. 5C Deering’s Adv. 

Legis. Service, p. 507.) The next year, the Legislature renumbered the 

provision without substantive change, effective June 30, 2022. (Stats. 2022, 

ch. 58, § 10, No. 2 Deering’s Adv. Legis. Service, pp. 1023–1024.) Unless 

otherwise noted, we cite to the current version of the provision as codified in

section 1172.6.

3 Defendant filed a second petition for resentencing under former 

section 1170.95 while his second appeal was pending. The trial court denied 

it on the grounds that defendant’s appeal from the denial of the first petition 

deprived the court of jurisdiction to recall his sentence, and even if it had 

jurisdiction, the petition was “ ‘summarily denied because the petitioner is 

not entitled to relief as matter of law.’ ”
3

defendant contends the trial court erred by finding that his claims were 

barred by the law of the case as established by this court in his second 

appeal.

For reasons discussed post, we conclude that People v. Wende review is

not constitutionally required for defendant’s present appeal because it is from

a postconviction order denying sentencing relief. Nonetheless, whether

People v. Wende review is required or not, we have considered defendant’s 

supplemental brief and agree with counsel that no arguable issue exists on 

appeal.

4 Accordingly, we affirm the trial court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

On August 9, 2007, a jury convicted defendant of second degree murder 

and attempted voluntary manslaughter, both enhanced for personal 

discharge of a firearm. These crimes occurred during a birthday party when

defendant became enraged that his girlfriend Brittany was flirting with 

another guest, Rudy Flores. As set forth in our prior opinions, the evidence 

proved defendant exchanged blows with guests at Brittany’s birthday party, 

stated he was through with her, and then went to his bedroom, where he 

retrieved a nine-millimeter semiautomatic handgun with 10 bullets in the 

clip. Defendant then walked quickly out of the house toward Brittany, who 

was standing about a foot from Rudy. When defendant was within about 10 

feet of Brittany, he stopped, raised his gun, aimed, and fired numerous shots 

toward her and Rudy. Brittany was shot five times, in her back, chest, and 

arm, while one bullet grazed Rudy’s side. Brittany ultimately died after 

4 As discussed post (p. 6), the propriety of considering a defendant’s 

supplemental brief once counsel files a People v. Wende brief in the appeal of 

a postconviction order is pending before the California Supreme Court in 

People v. Weisner (2022) 77 Cal.App.5th 1072, 1076–1077, review granted

July 13, 2022, S274617.
4

being taken to the hospital. (People v. Flitcroft (June 5, 2009, A121091)

[nonpub. opn.] p. 5 (hereinafter, First Opinion).) Defendant was sentenced to 

the maximum term of 40 years to life for Brittany’s murder and a concurrent 

three-year term for the attempted voluntary manslaughter of Rudy. In our 

First Opinion, in June 2009, we affirmed this judgment, and in August 2009, 

the California Supreme Court denied review.

In May 2019, defendant, representing himself, filed his first petition for 

recall of sentence and resentencing under former section 1170.95. Defendant 

attested that he was convicted of second degree murder under the felony 

murder rule or the natural and probable consequences doctrine and could not 

now be convicted of murder under the changes to section 188 that became 

effective January 1, 2019.

In June 2019, the trial court summarily denied the petition without 

appointing counsel to represent defendant. The court reasoned that 

defendant, as Brittany’s actual killer, was ineligible for relief. Defendant 

appealed, and on February 1, 2021, we issued a nonpublished opinion 

affirming the court’s order. (People v. Flitcroft (Feb. 1, 2021, A158033)

[nonpub. opn.] (hereinafter, Second Opinion).) In our Second Opinion, we 

held “the record of conviction demonstrates that Flitcroft was the actual 

killer of Brittany and is ineligible for relief under section 1170.95 as a matter 

of law. There is no reasonable probability that Flitcroft’s petition would have 

been granted if the trial court had appointed counsel, and any error in failing 

to appoint counsel was harmless.” (Id. at p. 10.)

On January 3, 2022, defendant filed his third petition for recall and 

resentencing, under section 1172.6, that is the subject of this appeal. As 

before, he attested, inter alia, that he was convicted under “a theory of felony 

murder, murder under the natural and probable consequences doctrine or 
5

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

person’s participation in a crime, or attempted murder under the natural and 

probable consequences doctrine,” and that he could not presently be convicted 

of murder or attempted murder because of changes made to sections 188 and 

189 effective January 1, 2019. (See § 1172.6, subd. (a)(1)–(3).)

On January 7, 2022, the trial court summarily denied defendant’s third 

petition. The court reasoned: “The law of the case doctrine precludes 

granting relief at this stage of these proceedings. ‘Where an appellate court 

states in its opinion a principle of law necessary to the decision, that principle 

becomes law of the case and must be adhered to in all subsequent 

proceedings . . . under the doctrine of the law of the case, the case may not go 

over ground that has been covered before in an appellate court.’ (Sargon 

Enterprises, Inc. v. University of Southern California (2013) 215 Cal.App.4th 

1495, 1506.) The Court of Appeal [in appeal No. A158033] has conclusively 

determined that as a matter of law, petitioner is not eligible for resentencing 

under Penal Code §1170.95 [now section 1172.6]. The law of the case 

doctrine therefore precludes a different result in response to the third 

petition.”5 This appeal followed.

DISCUSSION

As mentioned, appointed counsel has identified no issue for review. 

While counsel asks this court to conduct a People v. Wende review, several

courts have held People v. Wende review is constitutionally required only

from a defendant’s first appeal from a criminal conviction. Under this case

law, People v. Wende review is not required from defendant’s present appeal

because it is from a postconviction order denying sentencing relief. (E.g.,

5 We grant defendant’s request for judicial notice of the record on 

appeal in case No. A158033.
6

People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review granted Oct. 14,

2020, S264278 [“Wende’s constitutional underpinnings do not apply to 

appeals from the denial of postconviction relief”]; People v. Freeman (2021) 61

Cal.App.5th 126, 133, review den. May 12, 2021, S268011 (Freeman)

[People v. Wende procedures inapplicable to appeal from an order revoking

postrelease community supervision]; People v. Flores (2020) 54 Cal.App.5th

266, 273 [People v. Wende procedures inapplicable to appeal from denial of

petition for resentencing under § 1172.6].)

Nonetheless, “[w]hen an appellant files a pro se supplemental brief in a

Wende case, the appellate court must address the specific issues raised and, if 

they lack merit, explain why they fail.” (Freeman, supra, 61 Cal.App.5th at

p. 134.) Some courts disagree with this approach. For example, the Third 

District Court of Appeal recently held that because the defendant had no

right to People v. Wende review of his appeal from a postconviction order, the 

court was left with a “standard” appeal that was abandoned once the 

defendant, through counsel, attested that there were no cognizable issues on 

appeal. (People v. Weisner, supra, 77 Cal.App.5th at pp. 1076–1077, rev.gr.) 

As such, the court dismissed the appeal. (Id. at p. 1079, rev.gr.) The

propriety of this holding will soon be decided by the California Supreme

Court. Meanwhile, we follow our First Appellate District colleagues in 

Freeman by considering the issues raised by defendant in supplemental 

briefing. And, having done so, we affirm the trial court’s denial of section 

1172.6 relief as follows.

The trial court summarily denied defendant’s third petition under the

doctrine of the law of the case. “ ‘ “The rule of ‘law of the case’ generally 

precludes multiple appellate review of the same issue in a single case.” ’ ” 

(People v. Gray (2005) 37 Cal.4th 168, 196 (Gray); see People v. Stanley (1995)
7

10 Cal.4th 764, 786 (Stanley).) “We will apply the law of the case doctrine

where the point of law involved was necessary to the prior decision and was

‘ “actually presented and determined by the court.” ’ . . . Because the law of

the case doctrine ‘is merely one of procedure and does not go to the

jurisdiction of the court [citations], the doctrine will not be adhered to where

its application will result in an unjust decision, e.g., where there has been a

“manifest misapplication of existing principles resulting in substantial

injustice” [citation], or the controlling rules of law have been altered or

clarified by a decision intervening between the first and second appellate

determinations [citation]. The unjust decision exception does not apply when

there is a mere disagreement with the prior appellate determination.’ 

(Stanley, supra, 10 Cal.4th at p. 787.)” (Gray, supra, 37 Cal.4th at p. 197.)6

In the Second Opinion, this court squarely addressed defendant’s 

arguments that he made a prima facie showing that he could not be convicted 

of murder under the amended versions of sections 188 and 189 and that his 

statutory and/or constitutional rights were violated by the court’s failure to 

permit him to present new evidence or to appoint counsel to represent him. 

Affirming, we resolved these issues against defendant, concluding “the record 

of conviction demonstrates that Flitcroft was the actual killer of Brittany and 

is ineligible for relief under section 1170.95 [now section 1172.6] as a matter 

of law. There is no reasonable probability that Flitcroft’s petition would have 

been granted if the trial court had appointed counsel, and any error in failing 

to appoint counsel was harmless.” (People v. Flitcroft, supra, A158033, at p. 

10.) These legal issues were necessary to the Second Opinion and were

6 Defendant does not argue the “unjust decision” exception is grounds 

for avoiding application of the law of the case doctrine.
8

“ ‘ “actually presented and determined” ’ ” by this court. (Gray, supra, 37 

Cal.4th at p. 197.)

Here, defendant does little more than reassert these same arguments. 

In addition, he points to Senate Bill No. 775 (2021–2022 Reg. Sess.), which 

made certain amendments to former section 1170.95 effective January 1, 

2022.

7 (Stats. 2021, ch. 551, § 2, No. 5C Deering’s Adv. Legis. Service, pp. 

507–509.) However, these amendments do not impact the fatal flaw in

defendant’s efforts to obtain relief under section 1172.6. As the Second

Opinion established, defendant, as the actual killer, is not eligible for relief as 

a matter of law. (See, e.g., People v. Harden (2022) 81 Cal.App.5th 45, 59–60

[“Harden’s record of conviction conclusively establishes, with no factfinding,

weighing of evidence, or credibility determinations, that she was the actual

killer. . . . The trial court, therefore, correctly denied her petition at the 

prima facie stage”].) Accordingly, under the doctrine of the law of the case, 

the trial court was correct to decline to revisit this holding. (Stanley, supra,

10 Cal.4th at p. 787; Gray, supra, 37 Cal.4th at p. 197.)

Having now ensured defendant received adequate and effective 

appellate review, we affirm the order. (People v. Kelly, supra, 40 Cal.4th at 

pp. 109, 112–113.)

7 In enacting Senate Bill No. 775, the Legislature: (1) clarified that 

persons convicted of attempted murder or manslaughter under a theory of 

felony murder or the natural and probable consequences doctrine are 

permitted the same relief as those persons convicted of murder under the 

same theories; (2) codified the holdings of People v. Lewis, supra, 11 Cal.5th 

952, regarding petitioners’ right to counsel and the standard for determining 

the existence of a prima facie case; (3) reaffirmed that the proper burden of 

proof at a resentencing hearing is proof beyond a reasonable doubt; and 

(4) addressed what evidence a court may consider at a resentencing hearing. 

(Stats. 2021, ch. 551, § 1, No. 5C Deering’s Adv. Legis. Service, p. 507.)
9

DISPOSITION

The trial court order denying defendant’s third petition for recall and 

resentencing under section 1172.6 is affirmed.

_________________________

Jackson, P. J.

WE CONCUR:

_________________________

Burns, J.

_________________________

Wiseman, J.*

A164451/People v. Caleb James Flitcroft

* Retired Associate Justice of the Court of Appeal, Fifth Appellate 

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

California Constitution.