Filed 1/12/ 23 P. v. Valentine CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

JOE LOUIS VALENTINE

,

Defendant and Appellant. B3 1 9 633

(Los Angeles County Super. Ct. No. A 366030 )

THE COURT:

Joe Louis Valentine (de fendant ) appeals the order of the superior court denying his petition for resentencing under Penal
Code 1 se ction 1172.6 (former section 1170.95). 2 We appointed

1 All further statutory references are to the Penal Code unless otherwise indicated.2

counsel to represent defendant on appeal. After an examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. Defendant
filed his own supplemental brief, in propria persona. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.

BACKGROUND 3

In J anuary 1981 , defendant and other gang members decided to avenge the death of one of thei r own by targeting
member s of a rival gang. Defendant, armed with a firearm, went to a gym located in the rival gang’s territory, confronted several people and fired one shot into the ceiling. As defendant exited the gym

, he exchanged words with another man and then shot
him in the head , killing him. Defendant was c onvicted by jury of conspiracy to commit murder (§§ 182

, 187) with a true finding on
the allegation that a principal was armed with a firearm in the
commission of the offense (§ 12022, subd. ( a) ). The trial court sentenced defendant to a state prison term of 26 years to life comprised of 25 years to life for the conspiracy to commit murder and one additional year for the firearm enhancement. On appeal from the judgment of conviction

, we mod ified the judgment to correct the abstract of judgment

, which had erroneously documented a sentence of 16 years for defendant

2 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58 , § 10). For the sake of simplicity , we will refer to the section by its new numbering only

.

3 The following facts are drawn from this court ’ s unpublished decision in defendant’s direct appeal from his conviction. ( People

v. Valentine ( Oct. 3, 1983

, 2 Crim. No. 42591 ) [nonpub. opn.].)3

(rather than the 26 years to life sentence orally imposed by the trial court)

. In all other respects, we affirmed the judgment.
On January 3, 2022, defendant filed

, in propria persona

, a petition for resentencing pursuant t o section 1172.6

. 4

On March 3, 2022, the trial court summarily denied the petition for resentencing stating, in pertinent part, “defendant’s jury trial res ulted in conviction on April 20, 1982, of conspiracy to commit murder . . . consequently,

. . . defendant fails to meet the requirements of Penal Code section [1172.6] and is statutorily ineligible for such relief.” Defendant filed a timely notice of app eal from the order.

DISCUSSION Because the instant appeal is not from his conviction,
defendant is not entitled to our independent review of the record
pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ) or its federal constitutional counterpart, A nders v. California (1967)
386 U.S. 738. ( People v. Delgadillo (2022) 14 Cal .5th 216, 221

- 222, 224, 230 ; see People v. Kelly (2006) 40 Cal.4th 106, 119, ( Kelly ) [independent judicial review mandated by Anders applies only to first appeal as of right]; Peo ple v. Serrano (2012) 211 Cal.App.4th 496, 503 ( Serrano )

. ) However, he is entitled to appellate consideration of the contentions raised in his supplemental brief. (See Serrano , at p. 503.) In his supplemental brief

, defendant contends that the
evidence was insufficient to convict him of conspiracy to commit
murder. The argument defendant raises in his supplemental
brief constitute s a collateral attack on the judgment not within

4 On February 17, 2022, defendant filed a three

- page addendum to his section 1172.6 petition for resentencing.4

the purview of section 1172.6 nor, therefore, cognizable on appeal

from an o rder denying relief under that statute. 5
In conclusion, based on our examination of the entire
record

, we are satisfied that defendant’s attorney has fully complied with his responsibilities and that no arguable issues
exist. ( Kelly

, supra , 40 Cal.4th at pp. 109

- 110; Wende

, supra , 25 Cal.3d at p. 441.)
DISPOSITION The order denying defendant’s petition for resentencing
pursuant to Penal Code section 1172.6 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

—————————————————————————————— ASHMAN N

- GERST, Acting P. J., CHAVEZ , J., HOFFSTADT, J.

5 Defendant also requests judicial notice of a recent California Supreme Court ruling discussing the suff iciency of evidence required to support a conviction for conspiracy to commit murder. We decline to grant judicial notice for the reason stated above.