Filed 9/30/26 P. v. Warr CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C103756
Plaintiff and Respondent,
(Super. Ct. No. 09F04180)
v.
CALVIN WARR,
Defendant and Appellant.
Defendant Calvin Warr appeals from a postconviction order denying his
resentencing petition under Penal Code section 1172.6. Appellate counsel filed a brief
raising no arguable issues under People v. Wende (1979) 25 Cal.3d 436, and People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and defendant filed a supplemental brief.
We affirm. Undesignated section references are to the Penal Code.
BACKGROUND
We summarize the pertinent facts from our opinion in People v. Warr (Oct. 31,
2012, C068699) which we incorporate by reference on our own motion. Defendant was a
member of a street gang who “got into a heated verbal exchange with rival gang member
Diantae Hogan. Hogan’s friend, Gerald Kendrix, was present during the argument and
was in the line of fire when defendant pulled a semi-automatic handgun and fired a single
shot, striking both Hogan and Kendrix. Defendant then threatened another of Hogan’s
friends before leaving the scene. The jury convicted defendant of attempted murder,
1
attempted voluntary manslaughter, and making a criminal threat. The jury also found
that defendant personally used and discharged a firearm and that he committed the crimes
for the benefit of a criminal street gang. Defendant was sentenced to state prison for an
indeterminate term of 25 years to life plus a consecutive determinate term of 24 years, 8
months.” (Ibid.) Defendant appealed his convictions and a different panel of this court
affirmed. (People v. Warr, C068699.)
Defendant later filed a pro se petition for resentencing under section 1172.6. He
claimed that: (1) the People’s charging document allowed the prosecution to proceed
under the natural and probable consequences doctrine; (2) he was convicted of attempted
murder following a trial; and (3) he could not presently be convicted of attempted murder
because of changes made to sections 188 and 189 (see § 1172.6, subd. (a)(3)). Defendant
also filed a pro se petition requesting a hearing to preserve mitigating evidence tied to his
youth under People v. Franklin (2016) 63 Cal.4th 261.
The trial court held a hearing and denied the section 1172.6 petition because:
(1) defendant failed to establish a prima facie case for the attempted murder conviction
because the jury was not instructed on the natural and probable consequences doctrine;
and (2) the crime of attempted voluntary manslaughter was not eligible for relief under
section 1172.6. The appellate record does not indicate that the court ruled on defendant’s
Franklin petition.
Defendant timely appeals.
DISCUSSION
We evaluate the specific arguments presented in defendant’s supplemental brief
but need not independently review the record for error. (People v. Delgadillo, supra,
14 Cal.5th at pp. 231-232.)
Defendant contends there was insufficient evidence to support his convictions and
asks us to review the record to determine whether there was instructional error,
2
ineffective assistance of counsel, prosecutorial misconduct, or sentencing errors.
Defendant also contends he should be resentenced under section 1385.
We find defendant’s arguments meritless because an appeal from a denial of a
section 1172.6 petition is “not a direct appeal,” and the statute “does not permit a
petitioner to establish eligibility [for resentencing] on the basis of alleged trial error.”
(People v. DeHuff (2021) 63 Cal.App.5th 428, 438.) Similarly, defendant’s arguments
regarding resentencing under section 1385 fall outside the scope of review of the denial
of his petition for resentencing under section 1172.6. Defendant has therefore not
established that the trial court erred in denying his petition.1
1 Because defendant’s notice of appeal references only the denial of his section 1172.6
petition, and his supplemental brief does not address his Franklin petition, we do not
address the trial court’s failure to rule on the Franklin petition.
3
DISPOSITION
The order denying defendant’s section 1172.6 petition is affirmed.
/s/
MESIWALA, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
KRAUSE, J.
4