Filed 8/20/20 P. v. Halbert CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DERRICK EDWARD HALBERT,

Defendant and Appellant. D0 7 7056

(Super. Ct. No. SCD128329 )

APPEAL from a n order of the Superior Court of San Diego County,

Kenneth K. So, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

This is an appeal from the denial of appellant ’ s petition for

resentencing under Penal Code 1 section 1170.95 without conducting an

evidentiary hearing. We will affirm the order since the record of conviction

demonstrates appellant was origi nally convicted of both murder and

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

conspiracy to murder, thus demonstrating appellant acted with the specific

intent to kill the victim.

A jury convicted Derrick Edward Halbert and a codefendant of first

degree murder ( § 1 87 , subd. (a) ) and conspiracy to murder ( § 182,

subd. (a)(1)). The jury also found Halbert used a firearm ( § 12022,

subd. (a)(1)). Halbert was sentenced to an indeterminate term of 56 years t o

life.

Halbert appealed his conviction and this court affirmed the judgment

in an unpublishe d opinion ( People v

. Halbert (Nov. 9, 1999, D031427 [nonpub.

opn.]). We also denied Halbert ’ s petition for habeas corpus on the same date.

In August 2019, Halbert filed a petition under section 1170.95, alleging

he had been convicted of murder on a theory of natural and probable

consequences or as a non

- participating aider and abettor to a felony murder.

The court appointed counsel and on November 22, 2019, the court denied the

petition by written order. The court determined from the record of conv iction

that Halbert ’ s conviction of conspiracy to murder demonstrated the jury

found he acted with specific intent to kill. Thus, the court found Halbert was

not eligible for resentencing under section 1170.95 as a matter of law.

Halbert has filed a ti mely notice of appeal.

Appellate counsel has filed a brief pursuant to People v

. Wende (1979)

25 Cal.3d 436 ( Wende ) indicating she has not been able to identify any

arguable issues for reversal on appeal. Counsel asks the court to review the

record for error as mandated by Wende . We offered Halbert the opportunity

to file his own brief on appeal, but he has not responded.3 STATEMENT OF FACTS

The facts of the underlying convictions are fully set forth in our opinion

in People v

. Halbert

, supra , D031427. We see no reason to repeat them here.

DISCUSSION

As we have noted, appellate counsel has filed a Wende brief and asks

this court to review the record for error as mandated by Wende. To assist the

court in its review of the record, and in compliance wi th Anders v

. California

(1967) 386 U.S. 738 (

Anders ), counsel has identified the following possible

issues which were considered in evaluating the potential merits of this

appeal:

1. Whether the court erred in finding Halbert ’ s conviction precluded

reli ef under section 1170.95; and

2. Whether the trial court ’ s denial of Halbert ’ s petition was prejudicial

error.

We have reviewed the entire record as mandated by Wende and Anders

. We have not discovered any arguable issues for reversal on appeal.

Competent counsel has represented Halbert on this appeal.4 DISPOSITION

The order denying Halbert ’ s petition for resentencing under

section 1170.95 is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

O ’ ROURKE, J.