E085570_20250821

Filed 8/21/25 P. v. Culpepper 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Scott P. Williams, Judge. Affirmed.

Norman Fredrick Culpepper, in pro. per.; and Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I.

INTRODUCTION

Defendant and appellant Norman Fredrick Culpepper appeals from the trial court’s postjudgment order denying his petition for resentencing of his 2001 first degree murder conviction (Pen. Code,¹ § 187, subd. (a)) under section 1172.6 after issuing an order to show cause. Although this is an appeal from a post-conviction order, appointed counsel has filed a brief under the authorities of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), and not under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), requesting this court to conduct an independent review of the record. Appellate counsel argues that “[w]hile this appeal involves Penal Code section 1172.6 proceedings, the limitations set forth in People v. Delgadillo [ ] do not apply because the superior court denied the petition after issuing an order to show cause.” (Bold and underscore omitted.) In addition, defendant has had an opportunity to file a supplemental brief with this court and has done so. We need not determine whether this appeal should be determined under Delgadillo or Wende because, after considering the arguments raised in defendant’s supplemental brief, and exercising our discretion to conduct an independent review of the record, defendant’s appeal fails. We thus affirm the trial court’s postjudgment order denying defendant’s section 1172.6 petition.

II.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

On June 8, 1997, Lester Wilson, known as Woody, and Barbara Phillips, known as Bobbi, confronted Mike Durbin at his apartment in Riverside. When Mike answered a knock on his front door, Woody thrust a handgun in Mike’s face and backed him into Mike’s apartment. Woody demanded to know where Mike’s brother, Uwe Durbin, was. Woody and Bobbi wanted their TV and VCR returned. Woody and Bobbi believed Uwe, who had previously stayed with them, had stolen their property. Mike told them he did not know where Uwe was.

Woody demanded that Mike, Mike’s girlfriend, Lisa Robson, and her three children leave with him and Bobbi. Mike went in his car with Woody. Lisa and her children went with Bobbi. As they were leaving Mike’s apartment, Uwe arrived. Woody forced him at gunpoint into Mike’s car. Uwe denied knowing anything about Woody’s missing property.

All of the individuals and victims went to Woody’s house. After about 15 minutes of arguing over the stolen items, Mike asked if Lisa and the children could go upstairs. Lisa was scared because Woody had a gun and the argument was heated. While Lisa, Bobbi, and the children were upstairs, Woody again asked Uwe where his property was, and Uwe denied knowing anything about it. Woody shot Uwe in the leg. Woody then dragged Uwe into a downstairs bedroom. Woody and Bobbi told them they were going to kill them all. After Woody punched Uwe with a welder-type glove, and kicked and choked him, Uwe told Woody he sold the TV and VCR. Woody and Mike then went to look for the property, returning without finding it.

Woody left again alone and returned with defendant, Michael Woods, known as K-Mac, and Charone Parker, known as Ron-Ron. Upon returning, Woody announced they were going to kill all their captives. Throughout the afternoon, Woody, defendant, K-Mac, and Ron-Ron entered the room where Uwe was, closed the door, and beat him. On one occasion, after defendant entered the room alone, Mike heard flesh pounding flesh, glass breaking, thumping on the walls, and Uwe moaning and crying out. According to Mike, after 30 or 45 minutes, defendant left the room sweating, smiling, and wiping blood off himself with a towel. Lisa remembered seeing defendant either coming out of the room where Uwe was or in front of it taking off plastic gloves with blood on them. Defendant’s white tennis shoes had spots of blood on them as well.

Later on, Woody moved Mike to Uwe’s room, and Woody or defendant bound Mike to a chair with duct tape. Uwe was also bound in duct tape, laying on the floor on plastic, covered with blood, swollen, and unable to speak clearly. The room was in a shambles, with blood everywhere, holes in the walls, and hair stuck to the walls around the holes. At some point during the day, Mike saw a gun in the hands of each of the men who were present.

Eventually that afternoon, Woody recovered his TV and his VCR. Woody then unbound and removed Mike from the room. Uwe asked for something to drink. K-Mac and Woody went to the bathroom, returned with a glass of urine, and demanded Uwe drink it. When he refused, defendant beat Uwe. They brought Uwe another glass of urine and beat him until he drank it. Mike heard defendant and K-Mac laughing about the incident.

At some point during the day, defendant took Lisa and her children to the park for about one hour. Nicole Thompson also went in her own car. K-Mac and Ron Ron showed up and took Lisa and the children to another park. Lisa stated that defendant never threatened her in any way nor did he have a gun.

K-Mac and Ron-Ron left at dusk. Woody put bloody items in a box and put the box in his car trunk. Uwe was placed in Woody’s car. Woody told Mike to leave in his car with Lisa and the children and not go to the police.

On June 9, 1997, at 9:00 a.m., Riverside City firefighters responded to a call for medical aid at the 91 freeway, at Tyler. Upon arriving at the location, a firefighter discovered Uwe’s dead body laying face-down in water in a ravine. The autopsy showed that Uwe died of multiple gunshot wounds and blunt force trauma. He suffered five gunshot wounds to his head, gunshot wounds to his hand and knee, and blunt force trauma injuries to his head, face, torso, shoulders, and extremities.

Defendant was arrested at Nicole Thompson’s house. During his interview at the station, defendant explained that Woody said he had kidnapped a guy who stole from him, shot him in the knee and needed baby-sitters to watch the children at home. Defendant admitted being present, but denied he harmed Uwe. He explained he went to Woody’s house with Woody, K-Mac, Ron-Ron, and Nicole to calm the situation and help out. Defendant and his companions brought Bibles and prayed. They tried to persuade Woody not to hurt anyone if the property was returned. Defendant did not call the police because he was afraid of Woody and Bobbi. There was little or no blood on defendant’s clothing, but he acknowledged that he had been spattered with blood when Woody hit Uwe over the head or kicked him in the head. Defendant also claimed that the beatings took place while he was out of the house and he thought Woody would let the man live, but he was not sure.

B. Procedural Background

On September 19, 2001, a jury convicted defendant of first degree murder (§ 187, subd. (a); count 1); kidnapping for extortion under circumstances where the victim suffered death or great bodily injury (§ 209, subd. (a); count 2); and torture (§ 206; count 3). The jury found true a special circumstance allegation that the murder was committed during the course of a kidnapping in count 1 (§ 190.2, subd. (a)(17)(B)). The jury also found true that the victim suffered bodily harm or death in the commission of count 2.

On October 4, 2001, defendant was sentenced to life without the possibility of parole on count 1 for murder and a consecutive term of life with the possibility of parole on count 3 for torture. The trial court stayed the sentence on count 2 for kidnapping pursuant to section 654.

On June 7, 2002, in a nonpublished opinion, we affirmed the conviction in its entirety. (See People v. Culpepper (June 7, 2002, E030436) [nonpub. opn.] (Culpepper I).)

On January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) became effective, which amended the felony-murder rule and the natural and probable consequences doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) This change in the law was “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.” (Ibid.) Senate Bill No. 1437 also added former section 1170.95 (now section 1172.6), which created a procedure for offenders previously convicted of murder to seek retroactive relief if they could no longer be convicted of murder under the new law. (Stats. 2018, ch. 1015, § 4.)

On January 2, 2019, defendant in propria persona filed a petition for resentencing pursuant to former section 1170.95, requesting that his murder conviction be vacated based on changes to sections 188 and 189, and asking to be resentenced. The petition was denied based upon then-existing law regarding the true finding on the charged special circumstance in this case and affirmed on appeal. (See People v. Culpepper (November 9, 2020, E072675) [nonpub. opn.], review granted Feb. 1, 2021, S266036 (Culpepper II).) After the California Supreme Court granted review of our opinion and transferred the matter back to us with directions to vacate our original opinion and reconsider defendant’s appeal in light of People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis), we reversed the trial court’s order and remanded the matter for further proceedings pursuant to section 1172.6. (Culpepper II, supra, E072675.)

On April 7, 2023, the trial court set a hearing regarding the remittitur.

On September 13, 2023, defendant filed an order to show cause brief.

On September 5, 2024, the People filed an order to show cause brief opposing defendant’s section 1172.6 petition. In support, the People attached the unpublished opinion from Culpepper I, the reporter’s transcripts on appeal (volumes 1-6), and the court transcript and supplement on appeal.

After several status conferences and continuances, an evidentiary hearing was held on January 31, 2025. The parties submitted on their respective briefs. The trial court took judicial notice of the exhibits attached to the People’s brief and the file and records in Riverside County Superior Court, case No. RIF084270. The trial court analyzed the factors outlined in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) to determine whether defendant was a major participant in the underlying felony and acted with reckless indifference to human life.

The court found that defendant was a major participant in the murder. The court noted that although defendant did not plan the criminal offense, the evidence showed defendant had actively agreed to participate when the plan was already in motion. The court further explained that although defendant did not supply the firearm that eventually ended the victim’s life, defendant participated in the beating of the victim, which contributed to his death, and that defendant was alone with the victim for 30 to 45 minutes where others could hear pounding, glass breaking, thumps, flesh on flesh fists, and the victim moaning and crying out. Defendant came out of the room sweaty, no shirt on and wiping blood off himself, and that while there appeared to be no prior history noted of past experiences or conduct of other participants, it would have been self-evident to defendant because he had observed others beating the victim. The court pointed out that Mike had observed defendant wearing welder’s gloves and hit the victim and that Lisa had observed defendant taking off rubber gloves with blood on them and blood on defendant’s tennis shoes and shorts after he exited the room where the victim was. The court also stated that although defendant was not at the scene when the victim was shot in the head, which eventually ended his life, he had participated in the beating beforehand, making the victim drink urine and passing around a gun, and did nothing to help the victim escape through the window in the room. Additionally, although defendant was not present when the fatal shot was fired, after he beat the victim, defendant exited the room with a smile on his face and bragged to his friends what he had done.

In finding that defendant acted with reckless indifference to human life, the trial court found, while defendant did not fire the fatal shot, at one point he held the firearm and passed it around while the victim was tied up which showed he was aware there was a gun involved. The court also noted that defendant had participated in the beating and torture of the victim and had an opportunity to aid the victim, but instead he chose to beat the victim, appeared to be proud of the beating and showed no remorse by laughing and joking about it. The court pointed out that the torture of the victim lasted an entire day and defendant participated in a large portion of it. In addition, defendant was aware his codefendant was likely to kill because he recruited defendant and the codefendant told defendant that he had already shot the victim for stealing from him and they were going to kill the victim. Furthermore, defendant would have seen that the victim had a gunshot wound to his knee which was indicative the victim was going to die. Lastly, defendant did not try to minimize violence as he participated in the violence.

In conclusion, the trial court found defendant was ineligible for resentencing under section 1172.6 because the evidence submitted by the People proved beyond a reasonable doubt that defendant was a major participant in the underlying felony and that he acted with reckless indifference to human life. Defendant timely appealed.

III.

DISCUSSION

After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, counsel has filed a brief under the authorities of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and not under Delgadillo, supra, 14 Cal.5th 216, setting forth a statement of the case, a summary of the facts and potential arguable issues and requesting this court to conduct an independent review of the record. Under Anders, which requires “a brief referring to anything in the record that might arguably support the appeal,” (Anders, at p. 744) counsel raises the issues of whether there was substantial evidence to establish beyond a reasonable doubt that defendant was a major participant in the underlying felony and whether there was substantial evidence to establish beyond a reasonable doubt that defendant acted with reckless indifference to human life.

We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his two-page letter brief, defendant appears to argue the facts of the underlying trial and lack of credibility of certain witnesses. Specifically, defendant asserts that Mike was impeached at the start of his trial, Mike was under the influence of methamphetamine during initial police interview, there was no bruising or swelling on his knuckles or hands, and there were mitigating circumstances such as him taking Lisa and the children away from the scene and his lack of prior violent history. Defendant also argues, without any citations to the record or legal authority, that he was not a major participant in the underlying felony and did not act with reckless indifference to Uwe’s life but that he was trying to save his life by getting the property back.

“Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 [(2017–2018 Reg. Sess.)] ‘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.’ [Citation.] In addition to substantively amending sections 188 and 189 . . . , Senate Bill [No.] 1437 added [former] section 1170.95, [now section 1172.6,] which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 959.)

Under Delgadillo, if a no-issues brief is filed in a section 1172.6 appeal and the defendant then “files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.” (Delgadillo, supra, 14 Cal.5th at p. 232.) We are not required to conduct “an independent review of the entire record to identify unraised issues” but may do so at our discretion. (Ibid. [“While it is wholly within the court’s discretion, the Court of Appeal is not barred from conducting its own independent review of the record in any individual section 1172.6 appeal.”])

Counsel contends this appeal should not be limited to the review process of Delgadillo, since it follows an order to show cause and evidentiary hearing. Instead, counsel argues we should independently review the record for error as establish by Wende, supra, 25 Cal.3d 436. Counsel invites the court to distinguish this case from Delgadillo. We decline the invitation to discuss the scope of the court’s opinion in Delgadillo. As noted above, in that case the court authorized appellate courts to exercise their discretion to conduct a Wende review where the court’s find it appropriate. We have elected to exercise our discretion to independently review the record following the guidelines established in Wende. In addition, defendant here has filed a supplemental brief. Further discussion of the scope of Delgadillo’s review is not necessary.

Defendant’s claims related to his trial are not cognizable in section 1172.6 proceedings. Courts have consistently found that section 1172.6 is not a vehicle to relitigate trial errors or issues already decided. (See, e.g., People v. Coley (2022) 77 Cal.App.5th 539, 549 [§ 1172.6 “is not a means by which a defendant can relitigate issues already decided”]; People v. Farfan (2021) 71 Cal.App.5th 942, 947 [“mere filing” of § 1172.6 petition does not afford petitioner new opportunity to raise trial error claims or attack sufficiency of evidence to support jury’s findings]; People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [§ 1172.6 is not a direct appeal].) Resentencing proceedings under the statute involve “prospective relief from a murder conviction that was presumptively valid at the time,” not the correction of “errors in past factfinding.” (Strong, supra, 13 Cal.5th at pp. 713, 714.) Thus, to the extent defendant is challenging various aspects of his trial or attacking the sufficiency of the evidence to support the jury’s findings, those challenges are not cognizable in this appeal. (See Farfan, supra, 71 Cal.App.5th at p. 947.)

To the extent defendant is challenging the sufficiency of the evidence to support the denial of his section 1172.6 petition, he appears to assume this court will construct a theory supportive of his eligibility for relief and inconsistent with the prosecution’s version of the evidence. But “[t]hat is not our role.” (People v. Stanley (1995) 10 Cal.4th 764, 793.) “ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ This principle is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence.” (Ibid.) Defendant’s failure to set forth any cogent legal argument in support of his purported sufficiency of the evidence claim thus forfeits the claim on appeal. (Ibid.; accord, People v. Gallardo (2017) 18 Cal.App.5th 51, 69, fn. 11.)

In any event, we have exercised our discretion to independently review the record and found no arguable issues on appeal.

At an evidentiary hearing held on a section 1172.6 petition, the trial court may make factual findings and credibility determinations, and weigh evidence. (See People v. Harden (2022) 81 Cal.App.5th 45, 51.) “[I]t is the prosecution’s burden to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. [Citations.] If the superior court finds beyond a reasonable doubt that the petitioner is guilty of murder notwithstanding the amendments to sections 188 and 189, the petitioner is ineligible for relief under section 1172.6.” (People v. Vargas (2022) 84 Cal.App.5th 943, 951 (Vargas).)

We review the trial court’s factual findings for substantial evidence. (People v. Underwood (2024) 99 Cal.App.5th 303, 314.) “We ‘ “examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.” ’ ” (People v. Clements (2022) 75 Cal.App.5th 276, 298.) We “ ‘ “presume[ ] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ [Citations.] Substantial evidence also ‘ “includes circumstantial evidence and any reasonable inferences drawn from that evidence.” ’ ” (Vargas, supra, 84 Cal.App.5th at p. 951.) “Our job is only to see if substantial evidence exists to support the [trial court’s ruling] in favor of the prevailing party, not to determine whether substantial evidence might support the losing party’s version of events.” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582.)

Here, the trial court properly followed the procedures governing section 1172.6 petitions. And its order denying defendant’s petition after the evidentiary hearing is supported by substantial evidence set forth in the trial transcripts. Specifically, substantial evidence supports the trial court’s finding that defendant was a major participant and acted with reckless indifference to human life. (See Banks, supra, 61 Cal.4th at p. 803.) The evidence at trial established that defendant participated in the beating and torture of the victim for the most part of the day that led to the murder. Substantial evidence demonstrates that defendant had agreed to participate when the plan was already in motion, defendant had actively participated in the beating of the victim, which contributed to his death, and defendant was alone with the victim for 30 to 45 minutes where others could hear him beating the victim to a pulp. After beating the victim, defendant came out of the room sweaty, no shirt on and wiping blood off himself. In addition, as the trial court found, it would have been self-evident to defendant that his cohort had a propensity for violence as defendant had observed them beating the victim and saw that the victim had been shot in the knee. While defendant was not at the scene when the victim was shot in the head, he had participated in the beating beforehand, bragged about beating the victim, made the victim drink urine, had passed around a gun, and did nothing to help the victim escape, stop the eventually death of the victim or call the police. In addition, defendant was aware his codefendant was likely to kill because he recruited defendant and the codefendant told defendant that he had already shot the victim for stealing from him and they were going to kill the victim.

The substantial evidence set forth above also supports the finding that defendant acted with reckless indifference to human life. (See Clark, supra, 63 Cal.4th at p. 615; see also Strong, supra, 13 Cal.5th at p. 706 [“the major participant and reckless indifference elements often ‘ “significantly overlap” ’ ”].) The duration of the crime was prolonged. Defendant was present throughout most of the sequence of events, had an extended opportunity to try to persuade his confederates not to kill the victim, took no efforts to minimize the risk of violence, and took no efforts to aid the victim. Instead, as just discussed, defendant himself participated in the beatings that led to the victim’s death.

In sum, substantial evidence supports the trial court’s conclusion beyond a reasonable doubt that defendant was guilty of murder under the current law and was thus ineligible for relief under section 1172.6. There are no reasonably arguable issues on appeal.

We have exercised our discretion to independently review the record for error consistent with the process mandated by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented defendant on this appeal.

IV.

DISPOSITION

The trial court’s postjudgment order denying defendant’s section 1172.6 petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.