Filed 8/17/20 P. v. Dinkins CA2/3
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE

THE PEOPLE,                                                         B301378

        Plaintiff and Respondent,                                   (Los Angeles County
                                                                    Super. Ct. No. NA083282)
        v.

NEELY LE’JON DINKINS,

        Defendant and Appellant.



      APPEAL from an order of the Superior Court of Los
Angeles County, Tomson T. Ong, Judge. Affirmed.
      Thomas T. Ono, under appointment by the Court of Appeal,
for Defendant and Appellant.
      No appearance for Plaintiff and Respondent.
                  _________________________




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      Appellant Neely Le’jon Dinkins appeals the trial court’s
order denying his petition for resentencing pursuant to Penal
Code section 1170.95.1 Because Dinkins is ineligible for relief as
a matter of law, we affirm the court’s order.
        FACTUAL AND PROCEDURAL BACKGROUND2
      On September 11, 2009, Alexi Alvarez and Yesenia Soto
were lawfully crossing a Long Beach street with their two small
children, two-year-old Oscar and one-year-old Kaylee, who were
seated in a Radio Flyer wagon. Kaylee was wearing a seatbelt.
Dinkins, who was intoxicated, was driving his girlfriend’s Dodge
Durango. When making a turn into the intersection, he hit the
children but continued to drive, dragging them under the truck.
Attempting to stop Dinkins, a bicyclist chased him, Yesenia
climbed onto his truck and pounded on the partially open
window, and numerous bystanders screamed at him.
Nonetheless, Dinkins declined to stop. At some point, Oscar,
seriously injured, rolled from underneath the car, but Kaylee
remained trapped. Dinkins continued to speed from the scene for
over a mile, inflicting horrific injuries upon Kaylee and killing
her.
      A jury convicted Dinkins of second degree murder (§ 187,
subd. (a), count 1), gross vehicular manslaughter while
intoxicated (§ 191.5, subd. (a), count 2), driving under the


1    All further undesignated statutory references are to the
Penal Code.
2     We derive this information from this court’s prior opinion
in People v. Dinkins (Dec. 19, 2012, B231829) (non-published
opn.) of which we take judicial notice. (Evid. Code, §§ 452,
subd. (d), 459.)


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influence, causing injury (Veh. Code, § 23153, subd. (a), count 3),
driving with a blood alcohol level of .08 or more causing injury
(Veh. Code, § 23153, subd. (b), count 4), and leaving the scene of
an accident (Veh. Code, § 20001, subd. (a), count 5). As to counts
3 and 4, the jury found Dinkins proximately caused injury or
death to multiple victims (Veh. Code, § 23558); as to counts 2
through 5, the jury found he personally inflicted great bodily
injury on a person under five years old (§ 12022.7, subd. (d)). The
trial court sentenced Dinkins to six years eight months in prison,
plus 30 years to life. We affirmed the judgment in 2012. (People
v. Dinkins, supra, B231829.)
       After passage of Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (Senate Bill 1437), Dinkins filed a petition for
resentencing pursuant to section 1170.95. Using a preprinted
form, he checked boxes stating that a charging document had
been filed against him allowing the prosecution to proceed under
a felony-murder theory or the natural and probable consequences
doctrine; he was convicted of first or second degree murder under
one of those theories; and he could not now be convicted of
murder in light of changes to the law wrought by Senate Bill
1437. He also checked a box stating, “I request that this court
appoint counsel for me during this re-sentencing process.”
       On August 9, 2019, the trial court summarily denied the
petition because the court file reflected that Dinkins was the
actual killer and had not been convicted under a felony murder
theory or the natural and probable consequences doctrine.
Therefore, he was not entitled to relief as a matter of law.
       On September 17, 2019, Dinkins filed a timely notice of
appeal.




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                            DISCUSSION
       After review of the record, Dinkins’s court-appointed
counsel filed an opening brief that raised no issues, and
requested that this court conduct an independent review of the
record pursuant to People v. Wende (1979) 25 Cal.3d 436.
Appellant was advised that he had 30 days to submit by brief or
letter any contentions or argument he wished this court to
consider. We have received no response.
       The trial court properly denied Dinkins’s section 1170.95
petition. Senate Bill 1437 was enacted to “amend the felony
murder rule and the natural and probable consequences doctrine,
as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Section 1170.95
allows resentencing only for persons who were convicted under
the felony murder rule or the natural and probable consequences
doctrine. Dinkins was the sole perpetrator of the murder and the
actual killer. He was not prosecuted under the felony murder
rule, the natural and probable consequences doctrine, or any
theory of accomplice liability. Consequently, his conviction is
unaffected by passage of Senate Bill 1437. (See People v.
Tarkington (2020) 49 Cal.App.5th 892, 899, review granted
August 12, 2020, S263219; People v. Edwards (2020) 48
Cal.App.5th 666, 674, review granted July 8, 2020, S262481.)
Because Dinkins was the actual killer and was not convicted
pursuant to the natural and probable consequences doctrine or
the felony murder rule, he is statutorily ineligible for section
1170.95 relief.



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      The dissent notes that our Supreme Court is considering
when the right to appointed counsel arises under section 1170.95.
(People v. Lewis (2020) 43 Cal.App.5th 1128, review granted
March 18, 2020, S260598.) Because the trial court summarily
denied the petition without appointing counsel for Dinkins, the
dissent opines that an arguable issue exists, and this court
should have ordered supplemental briefing.
      But this approach misses the mark. Because there is no
possibility Dinkins is entitled to relief under section 1170.95, the
question of counsel’s appointment is not an arguable issue for
Wende purposes. Whether or not counsel had been appointed for
Dinkins, he is indisputably ineligible as a matter of law—a point
the dissent does not appear to dispute. If the Supreme Court
should ultimately hold that counsel must be appointed merely
upon the filing of a facially compliant section 1170.95 petition,
the court’s failure to do so here would be harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,
24.) If appointed, counsel could have done little more than
concede Dinkins’s ineligibility, and the petition would necessarily
have been denied. In the unlikely event the Supreme Court
eventually holds the failure to immediately appoint counsel on a
section 1170.95 petition falls in the “ ‘ “very limited class of
errors” ’ ” deemed structural, requiring automatic reversal
(People v. Mendoza (2016) 62 Cal.4th 856, 900; People v. Reese
(2017) 2 Cal.5th 660, 668–669), Dinkins nonetheless could never
obtain a more favorable outcome. He could succeed in the
interim step of obtaining counsel, but the ultimate result would
be the same: denial of the petition at the eligibility stage.
Dinkins is ineligible as a matter of law, pure and simple;
counsel’s representation can do nothing to change that fact.



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Thus, regardless of how our Supreme Court ultimately decides
the issue in People v. Lewis, there is no genuinely arguable issue
for Wende purposes.
      We have examined the record, and are satisfied no arguable
issues exist and Dinkins’s attorney has fully complied with the
responsibilities of counsel. (People v. Kelly (2006) 40 Cal.4th 106,
126; People v. Wende, supra, 25 Cal.3d at pp. 441–442.)

                        DISPOSITION
    The order is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS




                                     EDMON, P. J.


I concur:




                                     DHANIDINA, J.




                                 6
LAVIN, J., Dissenting:
       The California Supreme Court’s decision in People v. Wende
(1979) 25 Cal.3d 436 (Wende) “require[s] the appellate court ‘to
conduct a review of the entire record whenever appointed counsel
submits a brief which raises no specific issues or describes the
appeal as frivolous. This obligation is triggered by the receipt of
such a brief from counsel and does not depend on the subsequent
receipt of a brief from the defendant personally.’ (Wende, supra,
25 Cal.3d at pp. 441–442.) The court ‘recognize[d] that under this
rule counsel may ultimately be able to secure a more complete
review for his client when he cannot find any arguable issues
than when he raises specific issues, for a review of the entire
record is not necessarily required in the latter situation.
[Citations.]’ (Id. at 442.)” (People v. Kelly (2006) 40 Cal.4th 106,
118.) If, in its review, the court finds arguable appellate issues, it
must order briefing. (Ibid.; Smith v. Robbins (2000) 528 U.S. 259,
280.)
       In this case, defendant filed a petition under Penal Code
section 1170.95 in which he provided the required information
and requested the appointment of counsel. Without appointing
counsel, the trial court concluded defendant was the actual killer
and summarily denied the petition.
       But the issue of whether a trial court may summarily deny
a petition at this stage without appointing counsel is not settled.
Review is currently pending on that issue in the California
Supreme Court (People v. Lewis (2020) 43 Cal.App.5th 1128,
1137, review granted Mar. 18, 2020, S260598); many appellate
districts in this state have not yet weighed in on the question;
and there is disagreement on the point even among the justices of
this division (People v. Tarkington (2020) 49 Cal.App.5th 892, 911


                                  1
(dis. opn. of Lavin, J.), review granted August 12, 2020, S263219.)
As such, whether the trial court erred in this case by summarily
denying defendant’s petition without appointing counsel is an
arguable appellate issue about which this court is required to
request supplemental briefing. (Wende, supra, 25 Cal.3d at
p. 442, fn. 3 [“the court, upon finding an arguable issue, should
inform counsel for both sides and provide them an opportunity to
brief and argue the point”].)
       To be sure, the majority urges affirmance without
requesting supplemental briefing because it believes the error
was harmless. By harmless, the majority means that the facts
stated in the court’s prior appellate opinion show that defendant
is ineligible for relief as a matter of law. But the erroneous
deprivation of counsel has consequences that are necessarily
unquantifiable and indeterminate, and “[h]armless-error analysis
in such a context would be a speculative inquiry into what might
have occurred in an alternate universe.” (United States v.
Gonzalez-Lopez (2006) 548 U.S. 140, 150.)
       I therefore dissent.




                                                     LAVIN, J.




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