People v. Howard CA2/1

P
Filed 12/24/20 P. v. Howard CA2/1
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE


 THE PEOPLE,                                                         B303537

           Plaintiff and Respondent,                                 (Los Angeles County
                                                                     Super. Ct. No. A650427)
           v.

 KEISHUN VERNILL HOWARD,

           Defendant and Appellant.


     APPEAL from an order of the Superior Court of
Los Angeles County, Pat Connolly, Judge. Appeal dismissed.
     Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
     No appearance for Plaintiff and Respondent.
                             ____________________________
      In 1989, a jury found Defendant Keishun Vernill Howard
(Howard) guilty of second degree murder under Penal Code1
section 187 for the 1988 killing of Cardaos White (White), and
found true the allegation under section 12022.5 that Howard
personally used a firearm in the commission of the crime.
(People v. Howard (Aug. 3, 2020, B302852) [nonpub. opn.]
(Howard II).)2 The trial court sentenced Howard to a prison
term of 15 years to life, plus two years in prison for the
section 12022.5 enhancement. (Howard 

II, supra

, B302852.)
On September 25, 1991, our division affirmed the judgment of
conviction in an unpublished opinion. (People v. Howard
(Sept. 25, 1991, B046938) [nonpub. opn.] (Howard I).)
      On May 23, 2019, Howard filed a petition for resentencing
under section 1170.95.3 (See Howard 

II, supra

, B302852.)
On August 22, 2019, Howard filed a petition for writ of habeas
corpus, arguing that Proposition 57 and Senate Bill No. 1391




     1   Undesignated statutory citations are to the Penal Code.
     2   We, sua sponte, take judicial notice of the two prior
appellate opinions issued in Howard’s criminal case, along with
his notice of appeal from Howard II. (Evid. Code, §§ 452,
subd. (d), 459.) We previously took judicial notice of the
October 18, 2019 order discussed herein.
     3   “[S]ection 1170.95 . . . established a procedure for
vacating murder convictions for defendants who would no longer
be guilty of murder under [a] new law” that “abolished the
natural and probable consequences doctrine in cases of murder,
and limited the application of the felony murder doctrine.” (See
People v. Galvan (2020) 

52 Cal. App. 5th 1134

, 1139, review
granted Oct. 14, 2020, S264284.)




                                   2
entitled him to an order vacating his sentence or reducing it to
time served.4
       On October 18, 2019, the trial court denied Howard’s
habeas petition. On October 28, 2019, the trial court denied
Howard’s petition under section 1170.95. On November 21, 2019,
Howard appealed the October 28, 2019 order denying his section
1170.95 petition. On December 2, 2019, Howard filed the instant
notice of appeal, which seeks review of the October 18, 2019 order
denying his habeas petition.
       On August 3, 2020, we dismissed Howard’s appeal of the
October 28, 2019 order denying his section 1170.95 petition on
the ground he abandoned that appeal.5 (See Howard 

II, supra

,
B302852.)
       On September 2, 2020, we appointed counsel for Howard
for the appeal now before us. On October 6, 2020, Howard’s

      4  “Under Proposition 57, ‘ “ ‘[c]ertain categories of
minors . . . can . . . be tried in criminal court, but only after a
juvenile court judge conducts a transfer hearing to consider
various factors such as the minor’s maturity, degree of criminal
sophistication, prior delinquent history, and whether the minor
can be rehabilitated.’ ” ’ [Citation.] [¶] . . . [¶] . . . Senate Bill
No. 1391 ‘eliminates the district attorneys’ ability to seek
transfer of 14 and 15 year olds from juvenile court to criminal
court’ (subject to a narrow exception if the minor is ‘ “not
apprehended prior to the end of juvenile court jurisdiction” ’).
[Citation.].” (Narith S. v. Superior Court (2019) 

42 Cal. App. 5th 1131

, 1135, review granted Feb. 19, 2020, S260090.) Howard was
16 years old when he murdered White.
      5 Our opinion in Howard II stated that the order appealed
therein was issued on October 23, 2019. (See Howard 

II, supra

,
B302852.) The trial court actually issued that order on
October 28, 2019.




                                     3
appointed counsel filed a brief that identified no issues for us to
review. On October 27, 2020, Howard filed a one-page
supplemental brief, arguing that he “was charged with murder at
the age of 16,” and “[m]ost importantly,” he is “[an] innocent man,
that did not commit the crime that [he] was charged and
convicted of.” For the reasons discussed below, we lack
jurisdiction to reach the merits of Howard’s appeal.
       “[A] reviewing court is ‘without jurisdiction to consider an
appeal from a nonappealable order, and has the duty to dismiss
such an appeal upon its own motion.’ ” (In re Mario C. (2004)

124 Cal. App. 4th 1303

, 1307.) Because Howard was not sentenced
to death, the trial court’s October 18, 2019 order denying his
habeas petition is a nonappealable order. (See Cox v. Superior
Court (2016) 

1 Cal. App. 5th 855

, 858 [“[An] order denying [a]
habeas corpus petition is not appealable.”]; 36 Cal.Jur.3d (2015)
Habeas Corpus, § 125 [“[N]o appeal lies from the denial of a
petition for writ of habeas corpus”]; People v. Cole,

52 Cal. App. 5th 1023

, 1034–1035, fn. 2, review granted
Oct. 14, 2020, S264278 [noting that the statutory scheme
governing habeas petitions was amended in 2016 to grant
defendants “ ‘[under] a judgment of death’ a right to appeal the
denial of their habeas corpus petitions to the Court of Appeal.”].)
Accordingly, we lack jurisdiction over Howard’s appeal.
       Howard’s appointed counsel nonetheless claims that the
trial court treated his client’s “habeas corpus and sentence
modification petitions”6 as “having been filed pursuant to

      6 Howard’s habeas petition included a form titled “petition
for modification of sentence.” (Capitalization omitted.) On the
form, Howard requested that the trial court vacate or reduce his
sentence to time served pursuant to Senate Bill No. 1391.




                                   4
Penal Code section 1170.95, . . . and summarily denied them” in
its October 28, 2019 order. Counsel is mistaken. As discussed
above, the October 28, 2019 order denied a separate
section 1170.95 petition that Howard had filed on May 23, 2019,
and we dismissed Howard’s appeal of that order in Howard II.
      In contrast, the trial court’s October 18, 2019 order denied
Howard’s petition for writ of habeas corpus.7 Thus, the order
before us is not appealable, and the instant matter must be
dismissed.




      7   The October 18, 2019 order described Howard’s filing as a
“petition for habeas corpus filed in the Los Angeles Superior
Court on August 14, 2019.” Given that the habeas petition is
dated August 14, 2019, it appears the trial court employed the
prison-delivery rule to determine the date of filing for that
document. (See Silverbrand v. County of Los Angeles (2009)

46 Cal. 4th 106

, 110 [“The prison-delivery rule—as most recently
articulated by this court—provides that a self-represented
prisoner’s notice of appeal in a criminal case is deemed timely
filed if, within the relevant period set forth in the California
Rules of Court, the notice is delivered to prison authorities
pursuant to the procedures established for prisoner mail,”
fn. omitted].)




                                    5
                          DISPOSITION
       We dismiss Howard’s appeal of the trial court’s
October 18, 2019 order denying his petition for writ of habeas
corpus. This dismissal is without prejudice to Howard’s filing a
petition for writ of habeas corpus in this court.
       NOT TO BE PUBLISHED.




                                          BENDIX, J.


We concur:




             ROTHSCHILD, P. J.




             CHANEY, J.




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