Filed 12/17/19 P. v. Burrows CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH WAYNE BURROWS,

Defendant and Appellant.

F079377

(Super. Ct. No. CF86358903)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Appellant Kenneth Wayne Burrows (Burrows) appeals from the trial court’s denial of his petition to vacate his two murder convictions and for resentencing he filed pursuant to California Penal Code section 1170.95. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Background

On the morning of January 18, 1985, the bodies of William Holt and Thomas Crawford were found in the bed of Holt’s pickup, which was parked in a business parking lot. Crawford had been shot three times, including a fatal shot through his larynx. Holt had been shot once through the heart.

Lori Vann lived with Burrows’s brother, Eldon (Eldon), when the murders occurred. On October 8, 1986, Vann told police that on January 19, 1985, she learned from Eldon that he and Burrows shot Holt and Crawford. Further investigation determined that the Burrows brothers had lured the victims to Burrows’s residence on the pretext of purchasing a large amount of marijuana from them. The brothers did not have any money and planned on “ripping off” the victims. Both victims were shot at the residence and placed in the bed of Holt’s pickup, which was then driven to the location where it was found. Prior to the shooting, Burrows borrowed a .357 magnum Blackhawk revolver from Roger Vann. The bullets removed from the victim were consistent with ammunition test fired from a different Ruger Blackhawk revolver, indicating that the revolver may have been the type of weapon used in the homicides. Witness statements indicated that the actual gun used in the shooting had been dismantled and its parts strewn in western Fresno County.

On August 21, 1987, a jury convicted appellant of the second degree murder of Holt and the first degree murder of Crawford and found true a multiple murder special circumstance (§ 190.2, subd. (a)(3)). On September 25, 1987, the court sentenced Burrows to an indeterminate term of life without the possibility of parole on his first degree murder conviction and a stayed 15 years to life on his second degree murder conviction. However, on appeal, this court reversed Burrows’s conviction and the true finding on the multiple murder circumstance because the trial court denied Burrows his counsel of choice. (People v. Burrows (1990) 220 Cal.App.3d 116, 118, 126.)

On June 27, 1991, Burrows pled no contest to the second degree murder of Holt and the first degree murder of Crawford and the district attorney dismissed the special circumstance allegation.

On July 1, 1991, the court sentenced Burrows to an aggregate, indeterminate term of 40 years to life: 25 years to life on his first degree murder conviction and an indeterminate term of 15 years to life on his second degree murder conviction.

The Petition For Resentencing

“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).) Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds … section 1170.95, which allows those ‘convicted of felony murder or murder under a natural and probable consequences theory … [to] file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts .…’ (§ 1170.95, subd. (a).)

“An offender may file a petition under section 1170.95 where all three of the following conditions are met: ‘(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’ (§ 1170.95, subd. (a)(1)–(3).)

“Pursuant to section 1170.95, subdivision (c), the petition shall include, among other things, a declaration by the petitioner stating he or she is eligible for relief based on all three aforementioned requirements of subdivision (a). A trial court that receives a petition under section 1170.95 ‘shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section.’ (§ 1170.95, subd. (c).) If the petitioner has made such a showing, the trial court ‘shall issue an order to show cause.’ (§ 1170.95, subd. (c).)

“The trial court must then hold a hearing ‘to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not … previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.’ (§ 1170.95, subd. (d)(1).)” (People v. Martinez (2019) 31 Cal.App.5th 719, 723–724.)

On January 16, 2019, Burrows filed a petition to vacate his murder convictions and for resentencing pursuant to section 1170.95.

On March 15, 2019, the district attorney filed a response, arguing that Burrows did not qualify for relief because the evidence showed he was either the actual killer or aided and abetted the killer, and a motion to dismiss.

On May 9, 2019, in denying Burrows’s petition, the trial court found he was not convicted under the natural and probable consequences doctrine or under the felony- murder doctrine and that he was a major participant in the murders.

Burrows’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Burrows has not responded to this court’s invitation to submit additional briefing.

Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.