Filed 8/20/20 P. v. Halbert CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DERRICK EDWARD HALBERT,

Defendant and Appellant.

 D077056

 (Super. Ct. No. SCD128329)

APPEAL from an 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 Code1 section 1170.95 without conducting an 

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

demonstrates appellant was originally 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 (§ 187, 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 to 

life.

Halbert appealed his conviction and this court affirmed the judgment 

in an unpublished opinion (People v. Halbert (Nov. 9, 1999, D031427 [nonpub.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 conviction 

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 timely 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 with 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 

relief 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.
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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.