P. v. Green

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Filed 7/30/20 P. v. Green CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW GREEN,
Defendant and Appellant.
E074346
(Super.Ct.No. FSB1102089)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.

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Defendant and appellant Matthew Green appeals from a postjudgment order
denying his petition for resentencing pursuant to Penal Code1 section 1170.95 and Senate
Bill No. 1437. Based on our independent review of the record, we affirm the order.
PROCEDURAL BACKGROUND
A jury found defendant guilty of first degree murder (§ 187, count 1) and being a
felon in possession of a firearm (former § 12021, subd. (a)(1), count 2). It also found that
he personally and intentionally used a firearm in the commission of the offense, within
the meaning of section 12022.53, subdivisions (b), (c), and (d). In addition, the jury
found true the allegations that defendant committed the murder as a hate crime (§ 190.03,
subd. (a)), and that he intentionally killed the victim while he (defendant) was an active
participant in a criminal street gang (§ 190.2, subd. (a)(22)). A trial court sentenced him
to life without the possibility of parole on count 1, plus a consecutive 25 years to life on
the section 12022.53, subdivision (d) enhancement. The court imposed but stayed the
sentences on count 2 and the other firearm enhancements.
Defendant appealed his convictions, and this court affirmed the judgment.
(People v. Green (Mar. 13, 2013, E054565) [nonpub. opn.].)2
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2 This court affirmed the judgment, but did remand the matter to the trial court
with directions to strike the parole revocation fine from the sentencing minute order and
the abstract of judgment.

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On September 30, 2018, the Governor signed Senate Bill No. 1437, which became
effective on January 1, 2019. “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.’ ” (People v. Martinez (2019) 31
Cal.App.5th 719, 723.) Senate Bill No. 1437 added section 1170.95, “which provides a
procedure by which those convicted of murder can seek retroactive relief if the changes
in the law would affect their previously sustained convictions.” (People v. Gutierrez-
Salazar (2019) 38 Cal.App.5th 411, 417.)
On April 15, 2019, defendant filed a petition pursuant to section 1170.95, in
propria persona, claiming that he was not a major participant and did not act with reckless
indifference to human life, and that he was not present at the scene of the murder. He
also claimed, among other things, that the court improperly sentenced him to an
additional 55 years on the firearm enhancements. Therefore, he asked to be resentenced.
The district attorney filed a motion to strike defendant’s petition, arguing that
Senate Bill No. 1437 was unconstitutional; moreover, even if it was constitutional,
defendant was not entitled to relief since the evidence established he was the actual killer,
as reflected in this court’s prior opinion noting that he intentionally killed the victim in
order to further the activities of a criminal street gang.

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The court held a hearing on the petition on October 25, 2019. It told the parties
that its tentative ruling would be to deny relief because the true finding on the gang
special circumstance meant the jury found that defendant was the actual killer of the
victim. Defense counsel submitted on the tentative ruling. The court then summarized
the facts of the case, noting that defendant and others showed up at a party; some
members of the party told them they were not part of the party and asked if they had seen
a friend of theirs; defendant then pulled out a firearm and shot the person asking if they
had seen their friend, while making a statement about his gang affiliation. The victim
subsequently died. The court specifically noted the jury’s true finding on the gang
special circumstance under section 190.2, subdivision (a)(22), and stated that one of the
elements of the true finding was that defendant intentionally killed the victim. The court
concluded that, by finding the special circumstance to be true, the jury specifically found
that defendant was the actual killer.
The court added, “And the Court having tried this case is familiar with the facts
and agrees that the evidence clearly demonstrated that the defendant was the actual killer,
that he was acting with specific intent to kill. So that being the case, assuming that newly
enacted Penal Code section 189 is constitutional and valid, [defendant] would still be
guilty of first-degree murder with the special circumstance.” The court stated that
defendant was not eligible for relief under section 1170.95 and denied his petition. It
followed its oral ruling with a written decision on November 5, 2019, further stating that
defendant’s liability for murder did not rely on the felony-murder rule or the natural and

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probable consequences doctrine. The court also stated, given its finding that defendant
was the actual killer who acted with specific intent to kill, it would not reach any of the
constitutional issues regarding section 1170.95.
Defendant filed a notice of appeal, appealing the denial of his section 1170.95
petition. We affirm.
DISCUSSION
Defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the case, a summary of the facts, and identifying two potential arguable issues:
(1) whether the prosecution was required to present evidence other than a prior appellate
opinion to prove defendant was the actual killer; and (2) whether the judgment should be
reversed because the trial court erroneously held that the true finding on the gang special
circumstance meant defendant was the actual killer. Counsel has also requested this court
to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done.
While we understand that the appellate review procedures under People v. Wende,
supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, in which we review
the record ourselves to determine whether there are any arguable issues, generally apply
“only to a defendant’s first appeal as of right” (People v. Thurman (2007) 157

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Cal.App.4th 36, 45), we also recognize that we still retain discretion to conduct a
Wende/Anders review. (See generally Conservatorship of Ben C. (2007) 40 Cal.4th 529,
544, fn. 7 [“The court may, of course, find it appropriate to retain the appeal.”].) Because
of the importance of the issues involved to the parties, we exercise our discretion to
conduct an independent review of the record.
We have now conducted an independent review of the record and find no arguable
issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
MILLER
Acting P. J.
CODRINGTON
J.

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