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Filed 6/8/21 P. v. Walton CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL SIMLEE WALTON,

Defendant and Appellant.

C090876

(Super. Ct. No. 11F02805)

Appointed counsel for defendant Michael Simlee Walton asked this court 

to review the record and determine whether there are any arguable issues on appeal. 

(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would 

result in a disposition more favorable to defendant, we will affirm the judgment.

I

In April 2011, defendant fired multiple shots into a crowd of people after an 

altercation at a house party. In August 2012, a jury found defendant guilty of the murder 

of one victim, the attempted murder of a second victim, assault with a gun on three other 

victims, being a felon in possession of a firearm, and receiving stolen property (the gun). 
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Multiple gun enhancements were also found true. The trial court sentenced defendant to 

state prison for a determinate term of 26 years four months and a consecutive minimum 

indeterminate life term of 65 years.

This court affirmed defendant’s convictions in People v. Walton (Sept. 10, 2018, 

C072267) [nonpub. opn.] (Walton I), but vacated defendant’s sentence and remanded the 

matter to allow the trial court to exercise newly granted discretion to strike one or more 

of the firearm enhancements based on statutory amendments that took effect while 

defendant’s appeal was pending.1

On remand, the People opposed striking any of the firearm enhancements, arguing 

the enhancements were warranted given defendant’s long criminal history, the extremely 

violent nature of the offenses with five shooting victims, and defendant’s callous conduct 

that showed an extreme indifference to human life. The prosecutor attached the original 

probation report, letters from the homicide victim’s family, and this court’s opinion in 

Walton I.

Defense counsel countered that the trial court should either strike or reduce the 

firearm enhancements because the evidence at trial showed defendant had fired the gun to 

defend himself after he had been attacked at the party. Defendant read a statement to the 

trial court indicating that although he had been defending himself at the party, he 

nevertheless took responsibility for the choice to carry a gun. He informed the trial court 

that while in prison, he worked with an outreach program and had obtained certificates 

for anger management, substance abuse treatment, cognitive awareness, and reentry, 

among other things. He asked the trial court to strike the enhancements.

After considering the parties’ arguments, the trial court declined to strike the 

firearm enhancements in the interest of justice. The trial court cited defendant’s lengthy 

1 We treated defendant’s request to take judicial notice of the record in Walton I as a 

motion to incorporate by reference and granted the request.
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criminal history and his actions in firing into a crowd of nearly 50 people, which left one 

person dead and several others injured. At a subsequent hearing, the trial court 

resentenced defendant to the prison term previously imposed.

II

Appointed counsel filed an opening brief setting forth the facts of the case and 

asking this court to review the record and determine whether there are any arguable 

issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of 

the right to file a supplemental brief within 30 days of the date of filing the opening brief. 

Defendant filed a supplemental brief arguing that on remand, his trial counsel 

should have sought a hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin) 

before he was resentenced, and counsel’s failure to do so constituted ineffective 

assistance.

A reviewing court has authority to affirm, reverse, or modify any judgment or 

order appealed from and may order further proceedings. (Code Civ. Proc., § 43.) 

“The order of the reviewing court is contained in its remittitur, which defines the scope 

of the jurisdiction of the court to which the matter is returned.” (Griset v. Fair Political 

Practices Com. (2001) 25 Cal.4th 688, 701; see Snukal v. Flightways Manufacturing, Inc.

(2000) 23 Cal.4th 754, 774, fn. 5 [“the terms of the remittitur define the trial court’s 

jurisdiction to act”].) “The trial court is empowered to act only in accordance with the 

direction of the reviewing court; action which does not conform to those directions is 

void.” (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655; see Frankel v. Four Star 

International, Inc. (1980) 104 Cal.App.3d 897, 902 [remittitur directions are contained in 

the dispositional language of a reviewing court’s previous opinion].) 

In this case, our disposition in Walton I affirmed defendant’s convictions, vacated 

his sentence, and remanded the matter to the trial court to decide whether to exercise its 

discretion to strike any or all of defendant’s gun enhancements and to resentence him 

accordingly. (Walton I, supra, C072267, at p. 12.) The disposition did not direct the trial 
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court to conduct a Franklin proceeding to determine whether defendant had been 

provided with an adequate opportunity to make a record of youth offender information 

for subsequent use by the parole board. (See, e.g., Franklin, supra, 63 Cal.4th 261; 

Pen. Code, §§ 3051, 4801.) Because the trial court was limited on remand by our 

disposition, counsel was not deficient in failing to seek a Franklin hearing on remand. 

Having undertaken an examination of the entire record, we find no arguable error 

that would result in a disposition more favorable to defendant. We express no opinion on 

whether defendant is entitled to a Franklin proceeding by way of a motion in the trial 

court. (In re Cook (2019) 7 Cal.5th 439, 451, 458 [inmates who are entitled to a youth 

offender parole hearing under Penal Code section 3051 may seek the remedy of a 

Franklin proceeding by filing a motion in the trial court].)

DISPOSITION

The judgment is affirmed.

 /S/

MAURO, J.

We concur:

 /S/

RAYE, P. J.

 /S/

MURRAY, J.