Filed 6/23/26 P. v. Norbert CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A174366
v.
KISHAWN NORBERT, (San Francisco City & County
Super. Ct. No. CRI14028338)
Defendant and Appellant.
Defendant Kishawn Norbert appeals from the trial court’s denial of his
petition for resentencing under Penal Code1 section 1172.6. His appointed
counsel has filed a brief raising no issues on appeal and asking us to exercise
our discretion to conduct an independent review of the record pursuant to
People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). We have reviewed
the supplemental brief filed by defendant, which raises no arguable issue.
We therefore affirm the denial of resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts2
On July 7, 2014, at around 3:00 a.m., police responded to a call about a
shooting in the area of Brookdale Avenue in San Francisco. There, the
1 Further statutory references are to the Penal Code.
2 We take the facts from the transcript of the preliminary hearing.
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officers found Willie Cain, Jr., dead with gunshot wounds to the chest. Video
surveillance footage in the area showed a blue or “dark”-colored Dodge
Charger with the license plate number 7FHV540 turning onto Brookdale
Avenue between 3:04 and 3:07 a.m., two individuals exiting the vehicle and
running towards Cain, and flashes of gunfire.
At around 9:30 a.m. that same day, police responded to another call
about gunshots near the corner of Acacia Avenue and Ironwood Way.
Officers found Keith Zinn dead on the sidewalk with multiple gunshot
wounds. Witnesses identified two Black men as the perpetrators, and video
footage showed a dark-colored Dodge in the area after the Zinn murder.
Around the same time that Zinn was shot and killed, Cal Glenn was
assaulted and robbed by two Black men outside a laundry business on Third
Street in San Francisco. Video surveillance footage showed the suspects
assaulting Glenn, and a witness saw one of the suspects enter the passenger
side of a black Dodge before it drove off.
Police interviewed an unidentified witness who knew defendant and his
brother personally. The witness saw them in the suspect vehicle on the day
of the killings. Defendant and his brother were known members of the
Kirkwood/BNT gang. Zinn was a member of a rival gang. Police believed
Cain’s death was gang-related because he was killed in rival gang territory.
On July 7, 2014, a police officer identified defendant and his brother at
Mendel Plaza. The officer knew the brothers and decided to conduct a
probation and parole search. Defendant’s brother was in possession of the
keys to a blue Dodge, which was found parked nearby. The license plate
number matched that of the Dodge depicted in the video of the Cain shooting.
Fingerprint and DNA analysis linked the brothers to various items
recovered from the Dodge. Cell phone evidence revealed that defendant’s
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phone was used to make a call in the vicinity of the Cain shooting at 3:08
a.m., and three calls in the vicinity of the Zinn shooting at 9:34, 9:35, and
9:36 a.m. Ballistics analyses of casings and bullet fragments recovered from
the crime scene revealed there were two distinct firearms used in both
murders, and that one of the guns was used to shoot both Cain and Zinn.
B. Procedural History
In October 2014, defendant was charged by felony complaint with
murder (§ 187, subd. (a); counts one and two); discharging a firearm at an
inhabited dwelling (§ 246, count three); assault with a semiautomatic firearm
(§ 245, subd. (b); counts four and five); second degree robbery (§ 211; count
six); assault with force likely to cause great bodily injury (§ 245, subd. (a)(4);
count seven); permitting another to discharge a firearm from a vehicle
(§ 26100, subd. (b); count eight); carrying a concealed firearm (§ 25400,
subd. (a)(3); count nine); and participating in a criminal street gang (§ 186.22,
subd. (a); count twelve), with gang and firearm enhancements.
A preliminary hearing was held over the course of several days in
March and April 2016. The trial court held defendant to answer on all but
counts four and five, and an information was filed on May 4, 2016.
Defendant pled not guilty.
From 2017 to 2018, there was extensive litigation, including a motion
to suppress and a motion to set aside the information under section 995 on
various grounds, including the trial court’s alleged violation of defendant’s
due process and confrontation rights in accepting in camera testimony from
confidential witnesses without the defense’s presence and in sealing such
testimony. In opposition, the prosecution argued the in camera hearings
were authorized under Evidence Code sections 1040 to 1042, which apply to
testimony from confidential informants, and the informants were not
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material witnesses on the issue of guilt. The trial court denied defendant’s
section 995 motion.
In the meantime, Senate Bill No. 1437 (2017–2018 Reg. Sess.) (SB
1437) “ ‘amend[ed] 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. Curiel (2023) 15
Cal.5th 433, 448.)
On September 15, 2021—more than two years and nine months after
SB 1437 went into effect—defendant accepted an offer to plead guilty to two
counts of voluntary manslaughter (§ 192, subd. (a)) and one count of robbery
(§ 211) and to admit the allegation of his personal use of a firearm (§ 12022.5,
subd. (a)). In November 2021, the trial court sentenced defendant to 25 years
in prison.
Defendant did not appeal from the 2021 conviction and sentence.
C. Senate Bill No. 775 and Resentencing Proceedings
Effective January 1, 2022, Senate Bill No. 775 (2021–2022 Reg. Sess.)
(SB 775) expanded section 1172.6 to apply to individuals not only convicted of
felony murder and murder under the natural and probable consequences
theory, but to those convicted under “any ‘other theory under which malice is
imputed to a person based solely on that person’s participation in a crime,’ ”
including voluntary manslaughter. (People v. Antonelli (2025) 17 Cal.5th
719, 725.)
In July 2022, defendant petitioned for resentencing under the
predecessor statute to section 1172.6. (Stats. 2022, ch. 58, § 10.) In his
petition, defendant checked boxes indicating, in relevant part, that a
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complaint, information, or indictment had been filed against him that
allowed the prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine; that he had pled
guilty to murder in lieu of going to trial because he believed he could have
been convicted of murder pursuant to the felony murder rule or natural and
probable consequences doctrine; that he was not the actual killer and did not
act with the intent to kill, aid, or abet the actual killer; and that he was not a
major participant or did not act with reckless indifference to human life
during the course of the crimes for which he was convicted.3
In September 2022, the prosecution conceded that defendant had set
forth a prima facie case under section 1172.6 and expressed no objection to
the issuance of an order to show cause. The evidentiary hearing was initially
scheduled for January 2023 but was continued several times and ultimately
heard in September 2025.
In advance of the hearing, defendant filed a supplemental brief arguing
he was entitled to resentencing because at the time he agreed to plead guilty
to voluntary manslaughter, the constitutionality of SB 1437 was unsettled.
Defendant further argued his plea preceded the effective date of SB 775,
which clarified that resentencing relief was available to a person who pled
guilty to manslaughter in order to forgo the risk of being convicted of murder
under a theory of felony murder and the natural and probable consequences
doctrine. In opposition, the prosecution argued defendant was categorically
3 Defendant did not check a box indicating he “could not now be
convicted of 1st or 2nd degree murder because of changes made to Penal Code
§§ 188 and 189, effective January 1, 2019.” However, he was later permitted
to file an amended petition, nunc pro tunc, that indicated he was “convicted
of . . . manslaughter” after accepting a plea offer, and that he could not
presently be convicted of murder or attempted murder because of changes to
sections 188 and 189, effective January 1, 2019.
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ineligible for resentencing under section 1172.6 because he could not have
been convicted of murder under an invalidated theory when he accepted the
plea in 2021, which was long after the January 1, 2019, effective date of
section 1172.6. The prosecution relied on five appellate decisions from 2023
to 2025 unanimously holding that defendants convicted after the January 1,
2019, effective date of SB 1437 were categorically ineligible for resentencing
relief under section 1172.6.
The trial court ultimately denied defendant’s section 1172.6 petition.
Defendant appeals from that denial.
DISCUSSION
Where, as here, appointed counsel finds no arguable issues in an appeal
that is not from the first appeal after conviction, the defendant is not entitled
to independent review of the record pursuant to People v. Wende (1979) 25
Cal.3d 436 or Anders v. California (1967) 386 U.S. 738. (Delgadillo, supra, 14
Cal.5th at p. 226.) However, if the defendant files a supplemental brief, the
appellate court must “evaluate the specific arguments presented in that
brief” and “issue a written opinion.” (Id. at p. 232.)
Defendant’s sole argument in his supplemental brief is that the trial
court violated his due process and confrontation rights during the 2016
preliminary hearing by permitting “illegal in-camera hearings without the
knowledge or presence of [his] then attorney, . . . who profusely objected to
this violation of my right to have a fair trial.” Defendant asks that we “take
into consideration these facts that are in the preliminary hearing transcript.”
We see no basis for relief.
Case law is clear that a section 1172.6 proceeding is limited in scope to
the resentencing issues implicated by SB 1437; it is not an opportunity to
challenge and/or appeal all aspects of a conviction. (See People v. Farfan
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(2021) 71 Cal.App.5th 942, 947 [filing of section 1172.6 petition does not
afford petitioner new opportunity to raise claims of trial error or attack
sufficiency of evidence].) The appropriate avenue for defendant’s challenge to
the trial court’s rulings during the 2016 preliminary hearing was a direct
appeal from the judgment, which defendant never brought. (See People v.
Senior (1995) 33 Cal.App.4th 531, 535, 538 [where issue could have been
raised in a prior appeal, it need not be entertained in a subsequent appeal
“absent a showing of justification for the delay”].)
Defendant otherwise identifies no error in the trial court’s denial of
resentencing. SB 1437, which abrogated the felony murder rule and the
natural and probable consequences doctrine as viable theories of imputed
malice, had already been in effect for more than two years by the time
defendant agreed to the plea deal in 2021. In concluding defendant was
categorically ineligible for resentencing, the trial court relied on several
recent appellate decisions holding that section 1172.6 does not apply to
persons who were convicted by plea after SB 1437 took effect. (See People v.
Miller (2025) 112 Cal.App.5th 508, 511; People v. Hickman (2025) 110
Cal.App.5th 1262, 1265; People v. Gallegos (2024) 105 Cal.App.5th 434, 443;
People v. Lezama (2024) 101 Cal.App.5th 583, 590 (Lezama); People v. Reyes
(2023) 97 Cal.App.5th 292, 296.)
In Lezama, supra, 101 Cal.App.5th 583, the court addressed SB 1437’s
new requirement that a defendant “could not presently be convicted of
murder” (§ 1172.6, subd. (a)(3)), finding it ambiguous because the statute
“implies that at one point in time the circumstances were different” but “does
not specify the temporal point of contrast.” (Lezama, at pp. 588–589.) Based
on its review of relevant legislative history materials, Lezama concluded
resentencing under section 1172.6 was intended for defendants who, “at the
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time the plea was entered”—as opposed to the time an information charging
them with murder was filed—could not have been convicted of murder or
attempted murder except under a now invalid theory of imputed malice.
(Lezama, at p. 590.) That holding squarely applies here, as defendant could
not have been convicted of murder under a theory of imputed malice
abrogated by SB 1437 at the time he entered his plea in 2021. Defendant
offers no factual or legal basis for reaching a different outcome here.
Because defendant raises no arguable issue in his supplemental brief,
we affirm the trial court’s post-conviction order.
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing is
affirmed.
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
People v. Norbert (A174366)
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