1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. A 164451

( Mendocino County

Supe r. Ct. No.

SCUK

- CRCR

- 05

- 68281

- 2 )

A n 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 f ace 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 year s to lif e.

In defendant’s second appeal ( No. A158033)

, we affirmed a

post conviction order denying his petition for recall and resentencing under

former Penal Code 1 section 1170.95 , which has since been renumbered to

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

indicated.2

section 1172.6 2 (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 a nother post conviction order, this one den ying

his third petition 3 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 Peop le 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 den ial 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 secon d petition for resentencing under former

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

it on the ground s 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

defenda nt contends the trial court erred by finding that his claims were

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

appeal.

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

not constitutionally required f o r defendant’s present appeal because it is from

a postconviction order denying sentencing relief. Nonetheless, whether

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

supplemental brief and agree with counsel th at no arguable iss ue 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 w as 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 nin e

- 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, aime d, 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, r eview granted

July 13, 2022, S274617

.4

being taken to the hospital

. ( People v. Flitcroft (June 5 , 2009, A12 1091)

[nonpub. opn.] p. 5 (hereinafter, First Opinion). ) D efendant 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 Jun e 2009, we affirmed th is judgment

, and i n August 2009,

the California Supreme Court denied review.

I n May 20 19 , defendant, representing himself, filed his first petition for

recall of sentence and resentencing under former section 1170.95

. D efendant

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.

I n June 20 19 , the trial court summarily denied the petition without

appointing counsel to represent defendant. The court reasoned that

defendant, as Bri t tany ’ s actual kille r, was ineligible for relief. D efendant

appealed

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

affirming the court’s order

. ( People v. Flitcroft ( Feb. 1, 20 2 1 , A158033 )

[nonpub. opn.] (hereinafter, Second Opinion) .) In our Second O pinion, 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 probabil ity that Flitcroft’s petition would have

been grante d 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 app eal. As

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

murder, murder under the natural and probable consequences doctrine or5

other theory under which mal ice 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 s tage 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 bee n 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

de termined 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.

W hile 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 r elief. ( 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, 13 3

, 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 recen tly held that because the defendant had no

right to People v. Wende review of his appeal f rom 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

appea l. ( 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. ) Th e

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

Court

. M ean while

, 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

deter minations [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 co urt 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 section s 188 and 189 and that his

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

permit him to present new evidence or to a ppoint counsel to represent him

.

Affirming , we resolved th e s e 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 , A 158033, at p.

10.) T h e s e legal issues w ere necessary to the Second Opinion and w ere

6 Defendant does not a rgue the “unjust decision ” exception i s grounds

for avoid ing application of the law of the case doctrine.8

“ ‘ “ actually presented and de termined ” ’ ” by this court. ( Gray, supra

, 37

Cal.4th at p. 197.)

Here, defendant does little more than re assert the se same argument s

.

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, u n der 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.)

H aving 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, t he 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

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

California Constitution.