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Filed 2/4/22 P. v. Walker 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RAYMOND WALKER,

Defendant and Appellant.

C094136

(Super. Ct. Nos. 

STKCRFE20040010240, 

SF093973A)

Defendant Raymond Walker appeals from an order denying his postjudgment 

petition for resentencing under Penal Code section 1170.95.

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 Defendant’s appointed 

counsel found no arguable issues and filed a brief under People v. Wende (1979) 

25 Cal.3d 436, asking this court to independently review the record to determine whether 

there were any arguable issues on appeal. Defendant filed a supplemental brief 

challenging various components of his underlying conviction and sentence. After 

1 Undesignated statutory references are to the Penal Code.
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examining the record, we find no arguable error that would result in a disposition more 

favorable to defendant and affirm the judgment. 

BACKGROUND

We briefly summarize the relevant background from our opinion in defendant’s 

previous appeal from the underlying conviction. (People v. Walker (May 24, 2007, 

C051926) [nonpub. opn.] (Walker).)2 

Chandrika Dip, a taxicab driver, picked up defendant as a fare in his cab and drove 

him to a number of locations, before reaching their final destination. (Walker, supra, 

C051926.) When Dip asked for the cab fare, defendant pulled a gun from his pocket and 

demanded Dip’s money. Dip told defendant he did not have any money and reached for 

defendant’s gun. Defendant shot him in the forehead and killed him. (Walker, supra, 

C051926.) Defendant turned off the cab engine and left the scene. When he arrived at 

his sister’s home later, he told her he had accidentally shot a cab driver after a struggle. 

He denied trying to rob the cab driver. (Walker, supra, C051926.) He repeated his claim 

that he accidentally shot the cab driver to other people, including his girlfriend. (Walker, 

supra, C051926.)

Defendant was charged with first degree felony murder (§ 187), with a special 

circumstance allegation that the murder was committed while he was attempting to 

commit a robbery (§ 190.2, subd. (a)(17)), and attempted second degree robbery 

(§ 664/211), and firearm enhancements as to both counts (§§ 12022.53, subd. (d),

12022.5, subd. (a)). (Walker, supra, C051926.)

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 The jury found defendant guilty of 

2

 On our own motion, we incorporate by reference the appellate record in People v. 

Walker, case No. C051926.

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 The firearm use allegation as to the murder count was originally an allegation of 

intentional and personal discharge of a firearm, causing great bodily injury. (§ 12022.53, 

subd. (d).) By agreement of the parties, it was changed to a personal use allegation under 

section 12022.5, subdivision (a) to reflect the jury’s verdict. (Walker, supra, C051926.)
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murder and attempted robbery, found true the special circumstance allegation, and as to 

both counts found true the firearm allegation that defendant personally used a firearm. 

(Walker, supra, C051926.) The jury deadlocked on the allegation defendant intentionally 

discharged a firearm. 

The trial court sentenced defendant to a term of life without possibility of parole 

on the felony-murder conviction, plus the upper term of 10 years for the gun use 

enhancement, and a term of two years on the attempted robbery conviction, plus 10 years 

for the gun use enhancement, stayed under section 654. (Walker, supra, C051926.) 

Defendant appealed, claiming among other things the trial court improperly 

imposed the upper term for his gun use enhancements. (Walker, supra, C051926.) We 

affirmed the judgment on appeal. (Walker, supra, C051926.)

In April 2021, defendant filed a section 1170.95 petition for resentencing averring 

he had been charged under a theory of felony murder, was convicted under the felonymurder rule, and could not now be convicted of murder because of the changes made to 

sections 188 and 189 in Senate Bill No. 1437 (2017-2018 Reg. Sess.). He also requested 

appointment of counsel. Without appointing counsel, the trial court denied the petition 

finding defendant did not make a prima facie showing that the conviction is subject to 

section 1170.95. 

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening 

brief requesting Wende review of the court’s postjudgment order denying defendant’s 

section 1170.95 petition. Counsel properly advised defendant of his right to file a 

supplemental brief within 30 days of the date of filing of the opening brief. Defendant 

has filed a supplemental brief.

Whether the protections afforded by Wende and the United States Supreme 

Court’s decision in Anders v. California (1967) 386 U.S. 738 (Anders) apply to an appeal 

from an order denying a postjudgment motion to modify a sentence is an open question. 
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Our Supreme Court is set to resolve the issue in People v. Delgadillo (Nov. 18, 2020,

B304441) [nonpub. opn.], review granted February 17, 2021, S266305.

In People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 12, 2021, 

S267870,4 we described the Anders/Wende procedure that we held applicable to appeals 

from section 1170.95 petitions: “ ‘[C]ounsel appointed in such appeals is required to 

independently review the entire record and, if counsel so finds, file a brief advising the 

appellate court that there are “no arguable issues to raise on appeal”; [counsel must 

inform] the defendant [that he or she] has a right to file a supplemental brief [within 30 

days of the filing of counsel’s brief]; and this court has the duty to address any issues 

raised by the defendant but otherwise may dismiss the appeal without conducting an 

independent review of the record.’ ” (Figueras, at pp. 112-113.) We adhere to the 

reasoning of Figueras as to this postjudgment motion and address the issues raised by 

defendant.

The purpose of section 1170.95 is to permit resentencing for individuals who 

could not now be convicted under sections 188 and 189 because of Senate Bill No. 1437. 

(Stats. 2018, ch. 1015 [“This bill would provide a means of vacating the conviction and 

resentencing a defendant” where “the defendant could not be charged with murder after 

the enactment of this bill”].) One of the three initial conditions for section 1170.95 to 

apply is “[t]he petitioner could not presently be convicted of murder or attempted murder 

because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, 

subd. (a)(3).) Defendant was convicted of felony murder, involving an enumerated 

felony—attempted robbery. (§ 189, subd. (a).) He was the actual killer. As such, he is 

liable for murder. (§ 189, subd. (e)(1).) The amendments under Senate Bill No. 1437 do 

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 Review was granted in Figueras and held for Delgadillo.
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not relieve him of liability under any argument that could be presented and he is not 

eligible for relief under section 1170.95 as a matter of law.

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Relying on his assertion that the shooting was accidental, and the fact that the jury 

deadlocked on the allegation that he intentionally discharged a firearm, defendant claims 

the upper term sentence on the firearm enhancements must be reversed. He appears to 

argue that the jury could not have found him guilty of felony murder unless he 

intentionally discharged the firearm. He also claims the upper term sentence on the 

firearm enhancements was not supported because the jury had not found any aggravating 

circumstances true beyond a reasonable doubt. Lastly, he states the jury was tainted, as 

one of the jurors had stated he hoped the case would be “an open and shut case.” These 

claims do not address the trial court’s ruling on his section 1170.95 petition. Rather, 

defendant is attempting to raise issues involving his trial and the propriety of the 

imposition of the upper term on the firearm enhancements, from which he already 

appealed. Section 1170.95 does not provide defendants an opportunity to relitigate the 

merits of their underlying judgments of conviction or portions of their sentence 

unaffected by the changes in Senate Bill No. 1437. These claims are not cognizable on 

an appeal from a denial of a section 1170.95 petition. (See People v. Gomez (2020) 52 

Cal.App.5th 1, 16-17, review granted Oct. 14, 2020, S264033.)

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 For this reason the trial judge’s failure to appoint counsel for defendant was 

harmless beyond a reasonable doubt.
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DISPOSITION

The order denying defendant’s petition for resentencing is affirmed.

 \s\

BLEASE, Acting P. J.

We concur:

 \s\

DUARTE, J.

 \s\

KRAUSE, J.