The opinion
Filed 6/16/23 P. v. Lee 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F085345
Plaintiff and Respondent,
(Kern Super. Ct. No. BF122135C)
v.
DAVID LEE, JR., OPINION
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Poochigian, J. and Detjen, J.
INTRODUCTION
David Lee, Jr. (appellant), Corey Ray Johnson, and Joseph Kevin Dixon were
charged and convicted of committing multiple offenses, including three counts of first
degree premeditated murder (Pen. Code, § 187, subd. (a), § 189)1 with multiple murder
and gang special circumstances (§ 190.2, subds. (a)(3), (a)(22)). They were each
sentenced to three consecutive terms of life in prison without possibility of parole, and
their murder convictions were affirmed on direct appeal. (People v. Lee (May 17, 2022,
F082341) [nonpub. opn.].)2
In 2020, appellant filed a petition for resentencing pursuant to former
section 1170.95,3 and alleged his murder convictions were based on the felony-murder
rule and/or the natural and probable consequences doctrine, and he was not the actual
killer. The trial court denied appellant’s petition. On appeal, his appellate counsel filed a
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2 Appellant’s appellate counsel filed a request for this court take judicial notice of
our records and nonpublished opinions in People v. Johnson et al. (Sept. 25, 2013,
F057736) and People v. Lee (May 17, 2022, F082341). We hereby grant this request.
The following facts and procedural background are from these records and
opinions, along with the California Supreme Court’s decision in People v. Johnson
(2013) 57 Cal.4th 250.
In reviewing a section 1172.6 petition, the court may rely on “the procedural
history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3); People
v. Clements (2022) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th
393, 406, fn. 9.) The role of the appellate opinion is limited, however, and the court may
not rely on factual summaries contained in prior appellate decisions or engage in fact
finding at the prima facie stage. (People v. Clements, supra, 75 Cal.App.5th at p. 292;
People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) We will recite the factual statement
from these cases to place appellant’s arguments in context and will not rely on these facts
to resolve his appeal from the trial court’s order that found his second petition did not
state a prima facie case for relief.
3 Appellant filed his first petition for resentencing in 2020 pursuant to former
section 1170.95 and filed his second petition in 2022. As will be discussed below, the
statute was substantively amended effective January 1, 2022, and renumbered as section
1172.6 without further change on June 30, 2022. (People v. Saibu (2022) 81 Cal.App.5th
709, 715, fn. 3.)
2.
brief pursuant to People v. Wende (1979) 25 Cal.3d 436. This court conducted an
independent review of the record and affirmed the trial court’s order on appeal. In doing
so, we held the amendments enacted by Senate Bill No. 775 (2020–2021 Reg. Sess.)
(Senate Bill 775) applied to the review of his petition since his case was not yet final, and
found his petition failed to state a prima facie case for relief under the amended statute.
(People v. Lee, supra, F082341.)
In 2022, while appellate review of his first petition was pending, appellant filed a
second petition with the trial court for resentencing pursuant to section 1172.6, and
claimed he was entitled to relief because Senate Bill 775 had expanded eligibility for
resentencing. After this court’s opinion was filed that affirmed the denial of his first
petition, the trial court held a hearing on appellant’s second petition and held he failed to
state a prima facie case for relief, and that this court had already found he was ineligible
as a matter of law under the amendments enacted by Senate Bill 775.
Appellant has filed this appeal from the trial court’s denial of his second petition
for resentencing. Appellate counsel filed a brief which summarized the facts and
procedural history with citations to the record, raised no issues, and asked this court to
independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th
216 (Delgadillo) and Wende. Appellant submitted his own letter brief and requested this
court address certain issues.
We will address appellant’s contentions, conduct our own independent review of
the record, and affirm.
FACTS
“Defendants Corey Ray Johnson, Joseph Kevin Dixon, and David Lee, Jr., were
part of a 200–member Bakersfield gang called the Country Boy Crips (CBC). CBC’s
rival gangs included the Eastside Crips and the Bloods. Dupree Jackson, a CBC member,
testified for the prosecution under a grant of immunity. He was defendant Johnson’s
cousin and sold drugs for the gang. He described the gang’s structure and the different
3.
roles members filled. Some sold drugs. Some patrolled the boundaries of the gang’s
territory to keep out enemies and outsiders. Some would “hang out,” and some were
“pretty boys” who brought women into the gang. Others would “ride with the guns” to
seek out and kill enemies. Defendant Johnson sold drugs and was also a shooter for the
gang with the moniker ‘Little Rifleman.’ Defendant Dixon was considered a gang leader
because he had been to prison and had family ties to the gang. Defendant Lee would sell
drugs, obtain cars, and drive for and ‘ride’ with other gang members.
“Testimony of several witnesses established that between March and August 2007,
defendants were involved in various retaliatory shootings against perceived rivals. On
March 21, 2007, members of the Bloods shot Lee. He and Johnson retaliated by shooting
Bloods member Edwin McGowan. Lee was fired upon again the following day. All
three defendants were then involved in a retaliatory shooting on April 19, 2007, outside
an apartment in Eastside Crips territory. Vanessa Alcala and James Wallace, neither of
whom was a gang member, were killed during the incident. Ms. Alcala was pregnant.
Anthony Lyons was also shot but survived. On August 9, 2007, a fellow CBC member
was shot and killed. Defendants and Jackson identified the shooter, armed themselves,
and drove to the home of the shooter’s father. They intended to retaliate but were scared
away when a car drove by. Two days later, Johnson, accompanied by Dixon and Lee,
shot Adrian Bonner, a Bloods associate, paralyzing him. Jackson related statements
Johnson and Dixon made about the shootings.
“Johnson’s girlfriend, Sara Augustin, also testified under a grant of immunity.
She recounted various statements Lee and Johnson made about their involvement in the
shootings. DNA testing of clothing found near the apartment shooting scene was linked
to defendants, primarily to Johnson. Cell phone records reflected Dixon’s and Lee’s cell
phones were at the location of the various shootings and were used to call each other or
other CBC members before and after the events. Various witnesses gave descriptions of
4.
the participants that matched all three defendants.” (People v. Johnson, supra, 57 Cal.4th
at p. 256.)
PROCEDURAL BACKGROUND
Charges, Convictions, and Sentences
Appellant, Johnson, and Dixon “were tried and convicted after a joint jury trial of
three counts of first degree murder with multiple-murder and gang-murder special
circumstances, two counts of attempted murder, shooting at an occupied vehicle, active
gang participation, and conspiracy, as well as various enhancements.” (People v.
Johnson, supra, 57 Cal.4th at pp. 256–257.)
“All defendants received three terms of life without the possibility of parole for
the murder counts. Dixon received an additional term of 238 years to life, while Johnson
and Lee received additional terms of 196 years to life. Those terms included a term of
25 years to life for conspiracy as to Johnson and Lee, and 50 years to life as to Dixon
(25 years to life, doubled under the ‘Three Strikes’ law).” (People v. Johnson, supra,
57 Cal.4th at p. 257.)
Direct Appeal
In a joint direct appeal filed by appellant and codefendants Johnson and Dixon,
this court affirmed the judgments with “some minor exceptions and modifications.”
(People v. Johnson (2012) 205 Cal.App.4th 594 [review granted, and opinion superseded
by People v. Johnson, supra, 57 Cal.4th 250].)
In count 9, all defendants had been charged with “conspiracy to commit any or all
of four separate criminal offenses – assault with a firearm (§ 245, subd. (a)(2)), murder
(§ 187), robbery (§ 211), and active participation in a criminal street gang (§ 186.22,
subd. (a)). No victim(s) or particular dates (other than March 2–August 22, 2007) were
specified. The jury returned separate guilty verdicts, and separately found true one or
more overt acts, with respect to each defendant and each object of the conspiracy.
5.
Defendants were each sentenced on count 9 for conspiracy to commit first degree
murder.” (People v. Johnson, supra, 205 Cal.App.4th at p. 600.)
On appeal, this court reversed defendants’ convictions for “conspiracy to commit a
violation of section 186.22, subdivision (a), active participation in a criminal street gang,”
and agreed with their argument that it was “an invalid crime because a violation of
section 186.22 is itself a conspiracy, and ‘a conspiracy to commit a conspiracy is a
nonsensical redundancy that results in unconstitutional vagueness.’ ” (People v. Johnson,
supra, 205 Cal.App.4th at pp. 600–601.) This court “held that conspiracy to actively
participate in a criminal street gang did not qualify as a crime. It affirmed the conspiracy
convictions, however, because each was also based on the valid theory of conspiracy to
commit murder.” (People v. Johnson, supra, 57 Cal.4th at p. 257.)
The California Supreme Court’s Decision
The California Supreme Court granted the People’s petition for review from this
court’s opinion in the direct appeal, in order “to decide whether one may conspire to
actively participate in a criminal street gang. One can. When an active gang participant
possessing the required knowledge and intent agrees with fellow gang members to
commit a felony, he has also agreed to commit the gang participation offense. That
agreement constitutes conspiracy to commit the offense of active gang participation, and
may be separately charged once a conspirator has committed an overt act.” (People v.
Johnson, supra, 57 Cal.4th at p. 255.)
“Defendants were active gang members, well aware of each other’s active status
and the gang’s pattern of criminal gang activity. Their agreement to commit the various
shootings here constituted an agreement to commit the gang participation offense and,
once an overt act was performed, all the elements of conspiracy to violate
section 186.22(a) were satisfied.” (People v. Johnson, supra, 57 Cal.4th at p. 267.) The
court remanded the matter for further appropriate proceedings. (Ibid.)
6.
Decision on Remand
On remand, this court again affirmed the convictions and sentences for first degree
murder with special circumstances, with minor corrections. In light of the Supreme
Court’s ruling, we affirmed defendants’ convictions for conspiring to actively participate
in a criminal street gang. We reversed defendants’ convictions for conspiracy to commit
robbery because it was not supported by a valid overt act. (People v. Lee, supra,
F082341.)
APPELLANT’S FIRST PETITION FOR RESENTENCING
On June 8, 2020, appellant filed, in pro. per., a petition for resentencing under
former section 1170.95, and requested appointment of counsel.
The petition was supported by appellant’s declaration, signed under penalty of
perjury, where he checked boxes on a preprinted form that he was entitled to resentencing
under former section 1170.95 because a complaint or information was filed against him
that allowed the prosecution to proceed under a theory of felony murder or murder under
the natural and probable consequences doctrine; at trial, he was convicted of first or
second degree pursuant to the felony-murder rule or the natural and probable
consequences doctrine; and he could not now be convicted of first or second degree
murder under the amended versions to sections 188 and 189 because he was not the
actual killer, he did not, with the intent to kill, aid, abet, counsel, command, induce,
solicit, request, or assist the actual killer in the commission of first degree murder, and he
was not a major participant and did not act with reckless indifference.
The court appointed counsel to represent appellant. (People v. Lee, supra,
F082341.)
The People’s Opposition
On July 30, 2020, the People filed opposition to appellant’s petition, supported by
the factual statement from this court’s opinion in appellant’s direct appeal. The People
argued appellant was ineligible for resentencing as a matter of law because he was not
7.
prosecuted under the felony-murder rule or the natural and probable consequences
doctrine, and no underlying felonies were alleged. “This was a straightforward actual
malice, premeditated murder prosecution and conviction.”
The People further argued appellant was ineligible for relief based on the jury’s
true finding on the multiple murder special circumstance. “The jury was also instructed
that in order to find a multiple-murder special circumstance as to a non-killer, they had to
find the defendant acted with intent to kill. Because the jurors found all multiple-murder
special circumstances to be true as to all defendants, the jurors necessarily determined
each defendant had the specific intend to kill. The verdict regarding the special
circumstance clearly shows that Petitioner acted with the specific intent to kill.”
(People v. Lee, supra, F082341.)
Appellant’s Reply
On November 2, 2020, appellant filed a reply to the opposition, and argued he
made a prima facie showing because the jury was instructed on the natural and probable
consequences doctrine as it related to conspiracy. (People v. Lee, supra, F082341.)
The Trial Court’s Denial of Appellant’s First Petition
On December 15, 2020, the trial court filed a minute order and summarily denied
appellant’s first petition for resentencing. It did not conduct a hearing or give reasons
why it did not issue an order to show cause (OSC). (People v. Lee, supra, F082341.)
THIS COURT’S OPINION AFFIRMING THE
DENIAL OF APPELLANT’S FIRST PETITION
Appellant filed a timely notice of appeal from the trial court’s denial of his first
petition. On appeal, his appellate counsel filed a brief pursuant to Wende and asked this
court to independently review the record. On April 9, 2021, this court invited appellant
to submit a supplemental brief; he did not do so.
On May 17, 2022, this court filed the nonpublished opinion that affirmed the
denial of appellant’s first petition for resentencing. (People v. Lee, supra, F082341.) We
8.
conducted a full, independent review of the record, and explained that Senate Bill
No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) enacted former section 1170.95,
which became effective on January 1, 2019. In 2021, the California Supreme Court
extensively interpreted former section 1170.95 in Lewis. Former section 1170.95 was
substantially amended by Senate Bill 775, effective January 1, 2022.
We further explained that appellant’s petition for resentencing was filed and
denied before the decision in Lewis and the effective date of Senate Bill 775’s
amendments but held “the amended statute applies since his case is not yet final.” We
thus reviewed appellant’s petition to determine whether it stated a prima facie case for
resentencing under the amendments to former section 1170.95 enacted by Senate
Bill 775.
As to appellant’s petition, we found the trial court complied with Senate Bill 775’s
amendments to former section 1170.95, by appointing counsel and allowing for briefing,
but it did not conduct a hearing or give a statement of reasons why it did not issue an
OSC, and it may have engaged in premature factfinding at the prima facie stage.
However, we further explained that we may affirm the denial of the petition if appellant
was not prejudiced by the statutory errors in the case. (Lewis, supra, 11 Cal.5th at
pp. 972–974.) We held any statutory errors were not prejudicial for the following
reasons.
“A petitioner is ineligible for resentencing if he was the actual killer,
acted with the intent to kill or malice aforethought, or was a major
participant in the underlying felony who acted with reckless indifference to
human life. [Citations.]
“In this case, the jury found true the multiple-murder special
circumstances alleged pursuant to section 190.2, subdivision (a)(3) as to
each murder charge, that required the jury to find either that Lee was the
actual killer, or that he acted with intent to kill in aiding and abetting the
murders. [Citation.] As this court explained in the opinion in the direct
appeal, ‘[t]he jury ... was instructed that defendants were being prosecuted
for first degree murder under two theories: one, that the murders were
9.
willful, deliberate, and premeditated; and two, that the murders were
committed by lying in wait.’ [Citation.] ‘Jurors were also instructed on
transferred intent, to wit, if the defendant intended to kill one person but by
mistake or accident killed another person, the crime (if any) was the same
for the unintended killing as for the intended killing.’ [Citation.]
“ With respect to the multiple-murder special circumstance, jurors
[in this case] were instructed that if they found a defendant was guilty of
first degree murder but was not the actual killer, they had to find he acted
with the intent to kill in order to find the special circumstance true.’
[Citation.] As this court explained, the jurors in this case ‘necessarily
found defendants acted willfully with intent to kill; they were instructed,
pursuant to CALCRIM No. 521, that a defendant acted willfully if he
intended to kill; and, pursuant to CALCRIM No. 702, that, in order to find
a multiple-murder special circumstance as to a nonkiller, they had to find
the defendant acted with the intent to kill. Because jurors found all
multiple-murder special circumstances true as to all defendants, jurors
necessarily determined each defendant had the specific intent to kill.’
[Citation.]
“ ‘The People did not proceed on a natural-and-probable-
consequences theory of liability insofar as aiding and abetting was
concerned.’ [Citation.] ‘[T]he trial court never mentioned the natural-and-
probable-consequences doctrine in conjunction with aiding and abetting
liability, never identified the specific circumstances under which a
defendant might be found guilty of other crimes, and never directed the jury
to make any sort of findings on the issue. ... [W]hen it explained aiding and
abetting and conspiracy theories of liability to the jury, the prosecutor did
not even discuss, let alone rely on, the natural-and-probable-consequences
doctrine in the context of aiding and abetting.’ ” (People v. Lee, supra,
F082341, italics added in original.)
We affirmed the trial court’s order that denied appellant’s first petition for
resentencing.
APPELLANT’S SECOND PETITION FOR RESENTENCING
The instant appeal is from the trial court’s denial of appellant’s second petition for
resentencing.
On January 12, 2022, appellant filed a second petition for resentencing while the
appeal on his first petition was still pending before this court.
10.
In support of his second petition, appellant filed a declaration that consisted of a
preprinted form where he checked boxes that he was eligible for resentencing because
(1) a complaint, information, or indictment was filed that allowed the prosecution to
proceed under a theory of felony murder, murder under the natural and probable
consequences doctrine or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine; (2) he was convicted of murder, attempted murder, or
manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could
have been convicted of murder or manslaughter; and (3) he could not presently be
convicted of murder or attempted murder because of changes made to sections 188 and
189, effective January 1, 2019.
Appellant requested appointment of counsel. The court appointed counsel to
represent him and ordered further briefing.
The Prosecution’s Opposition
On April 12, 2022, the prosecution filed opposition and requested the court take
judicial notice of the records and appellate opinions in appellant’s prior cases. The
prosecution argued appellant was ineligible for resentencing as a matter of law because
the jury instructions showed he was convicted as either the actual killer, or he aided and
abetted with the intent to kill.4
Appellant’s Reply
On July 1, 2022, appellant’s appointed counsel filed a reply and argued the jury
was instructed on the natural and probable consequences doctrine based on the
conspiracy instructions.
4 On May 17, 2022, this court filed the nonpublished opinion that affirmed the
denial of appellant’s first petition for resentencing. (People v. Lee, supra, F082341.)
11.
The Court’s Hearings
On September 7, 2022, the court heard and denied appellant’s motion to discharge
his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118.
On October 4, 2022, the court convened the hearing on appellant’s second petition
for resentencing. Defense counsel advised the court that appellant wanted to make
another Marsden motion, and the court held another in camera hearing.
When the proceedings resumed in open court, the court stated it had denied
appellant’s second Marsden motion but granted his request to represent himself.
However, the court reconsidered that decision and stated it was going to reappoint
defense counsel to represent appellant and would not allow appellant to represent
himself. “You’ve had a history of filing this petition since June of 2020.” Appellant said
the law changed and expanded eligibility under Senate Bill 775. The court replied he was
raising the same issues, the appellate court considered the amendments enacted by Senate
Bill 775 when it affirmed the denial of his first petition, and appellant was “just playing
games.”
The court reappointed counsel, and both defense counsel and the prosecutor
submitted the matter on the pleadings.
The court denied appellant’s second petition and extensively read from this court’s
opinion that affirmed the denial of his first petition. The court explained this court
addressed the merits of appellant’s first petition based on the amendments enacted by
Senate Bill 775, and found appellant was ineligible for resentencing as a matter of law.
On November 30, 2022, appellant filed a timely notice of appeal from the denial
of his second petition.
DISCUSSION
I. Delgadillo/Wende
In Delgadillo, the court held a Wende analysis is not applicable to a trial court’s
order that denies a petition for postconviction relief under section 1172.6. (Delgadillo,
12.
supra, 14 Cal.5th at p. 222.) Delgadillo held that instead of using the process outlined in
Wende, appointed counsel and the appellate court should do the following: “When
appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel should
file a brief informing the court of that determination, including a concise recitation of the
facts bearing on the denial of the petition; and (2) the court should send, with a copy of
counsel’s brief, notice to the defendant, informing the defendant of the right to file a
supplemental letter or brief and that if no letter or brief is filed within 30 days, the court
may dismiss the matter.” (Id. at pp. 231–232.)
“If the defendant subsequently 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…. If the defendant does not file a supplemental brief or letter, the Court
of Appeal may dismiss the appeal as abandoned. [Citation.] … 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.” (Delgadillo,
supra, 14 Cal.5th at p. 232.)
In this case, appellate counsel filed a brief pursuant to Delgadillo and Wende from
the denial of appellant’s second petition. The brief also included counsel’s declaration
that appellant was advised he could file his own brief with this court. This court sent
appellant an order that, pursuant to Delgadillo, the appeal would be dismissed as
abandoned if he failed to submit a letter brief within 30 days.
On March 27, 2023, appellant filed a supplemental brief with this court in
response to our Delgadillo order. We will address his arguments and exercise our
discretion to independently review the record.
II. Successive Petitions
In his supplemental brief, appellant asserts the trial court improperly denied his
second petition based on the erroneous belief that he was not raising any new issues.
Appellant claims he was entitled to file a successive petition for resentencing because it
13.
was based on new legal authority enacted by Senate Bill 775, that was not considered in
his first petition that was filed under Senate Bill No. 1473.
A petitioner may file a successive petition under section 1172.6 if it is based on
new legal authority. (People v. Farfan (2021) 71 Cal.App.5th 942, 946–947, 950–951
(Farfan).) Farfan held the defendant in that case could file a successive petition because
the California Supreme Court’s ruling in Lewis and other published cases demonstrated
the “still-evolving state of [former] section 1170.95 jurisprudence” such that a second
petition would not be barred by collateral estoppel. (Farfan, at p. 950.)
In this case, appellant filed his first petition for resentencing in 2020 pursuant to
former section 1170.95 and sought resentencing of his murder convictions; the trial court
denied the petition that same year. The trial court’s ruling that denied his first petition
was made prior to the California Supreme Court’s decision in Lewis and the amendments
enacted by Senate Bill 775, that became effective on January 1, 2022.
Appellant filed an appeal from the trial court’s denial of his first petition. In 2022,
when this court reviewed the trial court’s ruling, we expressly found that the decision in
Lewis and the statutory amendments enacted by Senate Bill 775 applied to appellate
review of appellant’s first petition since the case was not yet final. We held the trial
court’s failure to comply with the amended statute was not prejudicial, extensively
reviewed the jury instructions given in the case, and concluded appellant was convicted
either as the actual killer or as an aider and abettor who acted with the intent to kill, and
he was ineligible for resentencing as a matter of law.
The trial court held the hearing on his second petition after this court filed the
opinion that affirmed the denial of his first petition. Appellant repeatedly insisted that his
second petition was based on the “expanded eligibility” resulting from the amendments
enacted by Senate Bill 775, and the trial court never considered certain arguments under
the amended statute when it denied his first petition.
14.
While this court reviewed the denial of appellant’s first petition based on the
amended statute, his appellate counsel filed a Wende brief and did not raise specific
issues. We thus turn to section 1172.6 and the issues appellant has raised in his
supplemental brief.
III. Section 1172.6
“Effective January 1, 2019, Senate Bill ... 1437 ... amended the felony-murder rule
by adding section 189, subdivision (e). [Citation.] It provides that a participant in the
qualifying felony is liable for felony murder only if the person: (1) was the actual killer;
(2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor;
or (3) was a major participant in the underlying felony and acted with reckless
indifference to human life. [Citation.] The Legislature also amended the natural and
probable consequences doctrine by adding subdivision (a)(3) to section 188, which states
that ‘[m]alice shall not be imputed to a person based solely on his or her participation in a
crime.’ ” (People v. Harden (2022) 81 Cal.App.5th 45, 50–51; People v. Strong (2022)
13 Cal.5th 698, 707–708 (Strong).)
“Senate Bill 1437 also created a special procedural mechanism for those convicted
under the former law to seek retroactive relief under the law as amended,” initially
codified in former section 1170.95. (Strong, supra, 13 Cal.5th at p. 708, fn. omitted;
Lewis, supra, 11 Cal.5th at p. 959.) The initial version of former section 1170.95
permitted “a person with an existing conviction for felony murder or murder under the
natural and probable consequences doctrine to petition the sentencing court to have the
murder conviction vacated and to be resentenced on any remaining counts if he or she
could not have been convicted of murder as a result of the other legislative changes
implemented by Senate Bill … 1437.” (People v. Flores (2020) 44 Cal.App.5th 985,
992.)
Effective January 1, 2022, Senate Bill No. 775 (2020–2021 Reg. Sess.) made
substantive amendments to former section 1170.95 that were consistent with People v.
15.
Lewis, supra, 11 Cal.5th 952, and also “ ‘[c]larifie[d] that persons who were convicted of
attempted murder or manslaughter under a theory of felony murder and the natural [and]
probable consequences doctrine are permitted the same relief as those persons convicted
of murder under the same theories.’ ” (People v. Birdsall (2022) 77 Cal.App.5th 859,
865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)
On June 30, 2022, the statute was renumbered as section 1172.6 without further
substantive changes. (People v. Saibu, supra, 81 Cal.App.5th at p. 715, fn. 3.)
Section 1172.6, subdivision (a) thus states:
“(a) A person convicted of felony murder or murder under the
natural and probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person's participation in a
crime, attempted murder under the natural and probable consequences
doctrine, or manslaughter may file a petition with the court that sentenced
the petitioner to have the petitioner's murder, attempted murder, or
manslaughter conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply:
“(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony
murder, murder under the natural and probable consequences doctrine or
other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine.
“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder.
“(3) The petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a).)5
5 While not applicable herein, section 189 was amended to allow for felony-
murder liability where the victim is a peace officer. (§ 189, subd. (f).)
16.
The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).)
After service of the petition, the prosecutor shall file and serve a response. The petitioner
may file and serve a reply after the response is served. (Id. at subd. (c).)
“After the parties have had an opportunity to submit briefings, the court shall hold
a hearing to determine whether the petitioner has made a prima facie case for relief. If
the petitioner makes a prima facie showing that the petitioner is entitled to relief, the
court shall issue an order to show cause. If the court declines to make an order to show
cause, it shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6,
subd. (c).)
The prima facie inquiry under section 1172.6, subdivision (c) is “limited.” (Lewis,
supra, 11 Cal.5th at p. 971.) The court “ ‘ “takes petitioner’s factual allegations as true
and makes a preliminary assessment regarding whether the petitioner would be entitled to
relief if his or her factual allegations were proved. If so, the court must issue an order to
show cause.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations
on credibility grounds without first conducting an evidentiary hearing.’ [Citations.]
‘However, if the record, including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.” ’ ” (Ibid.)
If an order to show cause is issued, “the court shall hold a hearing to determine
whether to vacate the murder, attempted murder, or manslaughter 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....” (§ 1172.6, subd. (d)(1).)
“At the hearing to determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under California law as amended by
the changes to Section 188 or 189 made effective January 1, 2019. The admission of
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evidence in the hearing shall be governed by the Evidence Code, except that the court
may consider evidence previously admitted at any prior hearing or trial that is admissible
under current law, including witness testimony, stipulated evidence, and matters
judicially noticed. The court may also consider the procedural history of the case recited
in any prior appellate opinion. However, hearsay evidence that was admitted in a
preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the
hearing as hearsay, unless the evidence is admissible pursuant to another exception to the
hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence
to meet their respective burdens....” (§ 1172.6, subd. (d)(3).)6
IV. Appellant’s Instructional Contentions
We first note that when appellant filed his second petition, the trial court complied
with section 1172.6 and appointed counsel, ordered further briefing, conducted a hearing
on the petition, and gave reasons for denying the petition.
Appellant contends his second petition stated a prima facie case for resentencing
on his convictions because the jury convicted him based on imputed malice, since the
jury was instructed with certain language about “implied” malice, the phrase “equally
guilty,” and the aiding and abetting and lying-in-wait instructions.
As in his first appeal, we have extensively reviewed the instructions given at
appellant’s jury trial, and his arguments are meritless.
First, the jury was correctly instructed with CALCRIM No. 520 on express and
implied malice, that express malice was the unlawful intent to kill, and he acted with
implied malice if he intentionally committed an act, “[t]he natural and probable
consequences of the act were dangerous to human life,” at the time he acted, he knew his
6 “If such evidence may not be considered at an evidentiary hearing to determine a
petitioner’s ultimate eligibility for resentencing, we fail to see how such evidence could
establish, as a matter of law, a petitioner’s ineligibility for resentencing” in determining
whether he made a prima facie case for relief. (People v. Flores (2022) 76 Cal.App.5th
974, 988, fn. omitted.)
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act was dangerous to human life, and he deliberately acted with conscious disregard for
human life. Contrary to appellant’s argument, implied malice is a concept distinct from
the natural and probable consequences doctrine of imputed malice, and the instructional
definition does not purport to impute malice from the commission of some other criminal
act, as is now prohibited under Senate Bill 1437. (§ 188, subd. (a)(3); People v. Gentile
(2020) 10 Cal.5th 830, 850; People v. Clements, supra, 75 Cal.App.5th at p. 299.)
Second, appellant apparently relies on the phrase “equally guilty” used in
CALCRIM No. 400, one of the aiding and abetting instructions, and asserts this phrase
allowed the jury to convict him based on imputed malice. As given at appellant’s trial,
CALCRIM No. 400 stated: “A person may be guilty of a crime in two ways. One, he or
she may have directly committed the crime. I will call that person the perpetrator. Two,
he or she may have aided and abetted a perpetrator, who directly committed the crime. A
person is equally guilty of the crime whether he or she committed it personally or aided
and abetted the perpetrator who committed it.” (Italics added.) The inclusion of this
phrase, however, did not result in appellant being convicted based on imputed malice
because the jury was also instructed with CALCRIM No. 401, that an aider and abettor
had to know the unlawful purpose of the perpetrator, intend ed to encourage or facilitate
the commission of the crime, and by act or advice, aided or encouraged the commission
of the crime. By giving CALCRIM No. 401, the instructional language “would have
cleared up any ambiguity arguably presented by CALCRIM former No. 400’s reference
to principals being ‘equally guilty.’ ” (People v. Johnson (2016) 62 Cal.4th 600, 641.)
We further note that appellant’s convictions for attempted murder became eligible
for resentencing as a result of the amendments enacted by Senate Bill 775. However, his
second petition also failed to make a prima facie case for resentencing on these
convictions. The jury was instructed with CALCRIM No. 600, that to prove that he was
guilty of attempted murder, the People had to prove that he took at least one direct but
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ineffective step toward killing another person, and he intended to kill that person. (Italics
added.)
As to appellant’s other claims based on the conspiracy and lying-in-wait
instructions, we again conclude that the entirety of the instructions show the jury
convicted appellant of first degree murder based on his own intent to kill. As we
explained in his appeal from the denial of his first petition, “the jury found true the
multiple-murder special circumstances alleged pursuant to section 190.2,
subdivision (a)(3) as to each murder charge, that required the jury to find either that
appellant was the actual killer, or that he acted with intent to kill in aiding and abetting
the murders…. [¶] ‘With respect to the multiple-murder special circumstance, jurors [in
this case] were instructed that if they found a defendant was guilty of first degree murder
but was not the actual killer, they had to find he acted with the intent to kill in order to
find the special circumstance true.’ [Citation.] As this court explained, the jurors in this
case ‘necessarily found defendants acted willfully with intent to kill; they were
instructed, pursuant to CALCRIM No. 521, that a defendant acted willfully if he intended
to kill; and, pursuant to CALCRIM No. 702, that, in order to find a multiple-murder
special circumstance as to a nonkiller, they had to find the defendant acted with the intent
to kill. Because jurors found all multiple-murder special circumstances true as to all
defendants, jurors necessarily determined each defendant had the specific intent to kill.’ ”
(People v. Lee, supra, F082341.)
Appellant’s instructional claims are meritless, and his second petition did not state
a prima facie case for resentencing on his multiple convictions for attempted murder and
murder.
V. Ineffective Assistance Contentions
Also in his supplemental brief, appellant raises several issues relating to the trial
court’s denial of his two Marsden motions, the denial of his request to represent himself
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at the hearing on his second petition for resentencing and claims of ineffective assistance
purportedly committed by both his trial and appellate counsel.
A. Background
We begin with appellant’s two Marsden motions brought in connection with his
second petition for resentencing.
On September 7, 2022, the court conducted the first in camera Marsden hearing.7
Appellant complained his appointed counsel refused to investigate his claims of newly
discovered evidence purportedly found in “grand jury testimony,” and argued such
evidence was relevant because Senate Bill 775 expanded eligibility for resentencing.
Defense counsel replied these alleged issues were not relevant in a section 1172.6
petition. The court denied the Marsden motion and advised appellant that he could not
make a new trial motion in a petition for resentencing.
On October 4, 2022, the court convened the hearing on appellant’s second petition
for resentencing. Defense counsel advised the court that appellant wanted to make
another Marsden motion, and the court held another in camera hearing on his second
Marsden motion. Appellant again complained his attorney refused to investigate his
evidentiary claims, counsel was only focused on “SB 1437,” and she failed to consider
the expanded eligibility that applied to him under “SB 775.”
The court explained to appellant that Senate Bill 775 applied to his case, and the
appellate court affirmed the denial of his first petition based on the provisions of the
amended statute. Appellant claimed the new law was not applicable when his first
petition was considered.
7 If defendant raises a Marsden issue on appeal, or an issue related to Marsden, the
previously sealed transcript of the in camera hearing is subject to disclosure. (See
California Rules of Court, rule 8.47; People v. Knight (2015) 239 Cal.App.4th 1, 7–8.)
21.
The court denied appellant’s second Marsden motion. He immediately asked to
represent himself. The court relieved appointed counsel and granted his motion to
represent himself on his petition for resentencing.
When the proceedings resumed in open court, the court stated appellant was
unhappy with the decision to deny his Marsden motion and wanted to represent himself.
The court further stated appellant was representing himself and asked him if he had
anything to add to his pending petition. Appellant replied he needed time to prepare.
The court reconsidered its decision and stated it was going to reappoint the same
defense counsel to represent appellant, and it would not allow appellant to represent
himself because “[y]ou’ve had a history of filing this petition since June of 2020.”
Appellant said the law had changed since his first petition because Senate Bill 775
expanded eligibility for resentencing. The court again stated he was raising the same
issues, the appellate court considered the amendments enacted by Senate Bill 775 when it
affirmed the denial of his first petition, appellant was “just playing games,” and he could
either represent himself and proceed with the hearing or accept reappointment of the
same counsel.
The court reappointed counsel, and both defense counsel and the prosecutor
submitted on the pleadings. The court denied appellant’s second petition and extensively
read from this court’s opinion that affirmed the denial of his first petition. The court
explained this court addressed the merits of appellant’s first petition based on the
expanded eligibility enacted by Senate Bill 775, and found appellant was ineligible for
resentencing as a matter of law.
B. Denial of the Marsden Motions
Appellant’s claims that defense counsel was prejudicially ineffective necessarily
implicate the complaints he made at the Marsden hearings. The law governing a
Marsden motion “is well settled. ‘When a defendant seeks to discharge his appointed
counsel and substitute another attorney, and asserts inadequate representation, the trial
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court must permit the defendant to explain the basis of his contention and to relate
specific instances of the attorney’s inadequate performance. [Citation.] A defendant is
entitled to relief if the record clearly shows that the first appointed attorney is not
providing adequate representation [citation] or that defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective representation is likely to
result [citations].’ ” (People v. Fierro (1991) 1 Cal.4th 173, 204; People v. Memro
(1995) 11 Cal.4th 786, 857.)
While the trial court must afford the defendant the opportunity to express specific
reasons why he believes he is not being adequately represented, the court is not required
to accept defendant’s assertions of inadequate representation and may instead credit
counsel’s explanation. (People v. Vera (2004) 122 Cal.App.4th 970, 978–980; People v.
Webster (1991) 54 Cal.3d 411, 436.) We review the denial of a Marsden motion under
an abuse of discretion standard. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)
The court did not abuse its discretion when it denied appellant’s Marsden motions.
His motions were based on either a misunderstanding or misapprehension of the
applicable law on petitions for resentencing. Appellant complained his attorney refused
to raise evidentiary and factual issues in his petition. Even after the amendments enacted
by Senate Bill 775, however, “[t]he mere filing of a section [1172.6] petition does not
afford the petitioner a new opportunity to raise claims of trial error or attack the
sufficiency of the evidence supporting the jury’s findings. To the contrary, ‘[n]othing in
the language of section [1172.6] suggests it was intended to provide redress for allegedly
erroneous prior factfinding.… The purpose of section [1172.6] is to give defendants the
benefit of amended sections 188 and 189 with respect to issues not previously
determined, not to provide a do-over on factual disputes that have already been
resolved.’ ” (Farfan, supra, 71 Cal.App.5th at p. 947.)
Appellant’s complaints about his attorney also failed to understand that this
court’s opinion that affirmed the denial of his first petition had already addressed whether
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appellant’s first petition stated a prima facie case for resentencing of his murder
convictions under the amendments enacted by Senate Bill 775.
The entirety of the record reflects appellant was ineligible for relief under
section 1172.6 as a matter of law, and defense counsel was obviously aware that
appellant could not raise evidentiary claims of trial error in his section 1176 petition. An
attorney is not ineffective for failing to raise meritless objections or motions. (People v.
Lucero (2000) 23 Cal.4th 692, 732.)
C. Appellant’s Motion to Represent Himself
Appellant next argues that just before conducting the hearing on his second
petition for resentencing, the trial court improperly rescinded its order that he could
represent himself on his second petition for resentencing, in violation of his constitutional
rights and Faretta v. California (1975) 422 U.S. 806.
“To invoke the constitutional right to self-representation, a criminal defendant
must make an unequivocal assertion of that right in a timely manner. [Citation.] ‘The
court faced with a motion for self-representation should evaluate not only whether the
defendant has stated the motion clearly, but also the defendant’s conduct and other
words. Because the court should draw every reasonable inference against waiver of the
right to counsel, the defendant’s conduct or words reflecting ambivalence about self-
representation may support the court’s decision to deny the defendant’s motion. A
motion for self-representation made in passing anger or frustration, an ambivalent
motion, or one made for the purpose of delay or to frustrate the orderly administration of
justice may be denied.” (People v. Barnett, supra, 17 Cal.4th at p. 1087.)
“Applying these principles, courts have concluded that under some circumstances,
remarks facially resembling requests for self-representation were equivocal, insincere, or
the transitory product of emotion.” (People v. Tena (2007) 156 Cal.App.4th 598, 607.)
“Equivocation of the right of self-representation may occur where the defendant tries to
manipulate the proceedings by switching between requests for counsel and for self-
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representation, or where such actions are the product of whim or frustration.” (People v.
Lewis and Oliver (2006) 39 Cal.4th 970, 1002; People v. Scott (2001) 91 Cal.App.4th
1197, 1205–1206 [defendant’s Faretta motion was not unequivocal because he requested
to represent himself immediately after the court denied his Marsden motion, his
statements indicated he made the Faretta motion “only because he wanted to rid himself
of appointed counsel,” and the defendant’s “main problem with counsel was a
disagreement over trial tactics, which is ‘an insufficient reason to grant an untimely
Faretta request ....’ ”].)
The court did not violate Faretta by reconsidering its decision on whether
appellant could represent himself at the hearing. At the Marsden hearings, the court
carefully explained to appellant that he could not raise evidentiary claims in his petition,
this court had reviewed whether his first petition stated a prima facie case for
resentencing on his murder convictions based on the amendments enacted by Senate
Bill 775, and that counsel was not ineffective. When the court denied his second
Marsden motion, appellant immediately moved to represent himself, and the court
initially granted the request. Within minutes, when the proceedings returned to open
court, the court reconsidered its decision and decided appellant was “playing games” by
requesting to represent himself in response to the denial of his meritless Marsden
motions.
The record supports the court’s findings that appellant’s immediate demand to
represent himself, made in reaction to the denial of his second meritless Marsden motion,
was an attempt to manipulate the proceedings. Appellant was playing “the Faretta
game,” and “[h]is request was at best equivocal and hardly an unqualified waiver since he
only wanted to represent himself if the court would not give him another attorney. … [I]t
was pretty obvious that this defendant was simply playing games with the court.…”
(People v. Lopez (1981) 116 Cal.App.3d 882, 889–890; People v. Williams (1990)
220 Cal.App.3d 1165, 1170.)
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D. Ineffective Assistance of Trial Counsel
Appellant argues trial counsel was prejudicially ineffective for failing to raise
certain instructional arguments and other matters at his request during the hearing on his
second petition for resentencing. Appellant further argues counsel ignored his request to
waive his presence at the hearing on the petition, and instead forced him to be transported
from state prison to the county jail, that caused him to miss certain educational classes in
state prison. Appellant asserts trial counsel allegedly made these decisions out of “spite”
and because counsel was “disgruntled” as a result of appellant’s multiple Marsden
motions.8
The record refutes appellant’s claims of ineffective assistance. There is no
evidence counsel acted out of spite in handling his case. As previously explained, an
attorney is not ineffective for failing to raise meritless objections or motions. (People v.
Lucero, supra, 23 Cal.4th at p. 732.) Counsel obviously recognized that appellant’s
“new” challenges to his first degree murder convictions under Senate Bill 775 had
already been addressed by this court, and appellant’s evidentiary claims could not be
raised in a section 1172.6 petition.
E. Ineffective Assistance of Appellate Counsel
Finally, appellant argues his appointed appellate counsel was prejudicially
ineffective for filing a Wende brief in this appeal from the denial of his second petition,
instead of raising certain issues at his request.
An appellate counsel does not commit ineffective assistance by filing a Wende
brief since “the appellate court … review[s] the entire record to determine whether there
is any arguable issue.” (People v. Kelly (2006) 40 Cal.4th 106, 119.)
8 Appellant’s insistence that he wanted to waive his presence at the hearing on his
second petition for resentencing is inconsistent with his appellate claim that he wanted to
represent himself at that same hearing.
26.
As previously explained, the California Supreme Court held in Delgadillo that
“[w]hen appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel
should file a brief informing the court of that determination, including a concise recitation
of the facts bearing on the denial of the petition; and (2) the court should send, with a
copy of counsel’s brief, notice to the defendant, informing the defendant of the right to
file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the
court may dismiss the matter.” (Delgadillo, supra, 14 Cal.5th at pp. 231–232.) “If the
defendant subsequently 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. The filing of a supplemental brief or letter does not compel an independent
review of the entire record to identify unraised issues. [Citations.] … 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.” (Delgadillo,
at p. 232.)
In this appeal, appellant responded to this court’s Delgadillo order and filed a
supplemental brief. We have addressed the issues raised in appellant’s supplemental
brief and, in an abundance of caution, exercised our discretion to conduct our own
independent review of the record. There are no arguable issues, and appellant was
ineligible for resentencing as a matter of law as to his murder and attempted murder
convictions.
DISPOSITION
The trial court’s order of October 4, 2022, denying appellant’s second petition for
resentencing is affirmed.
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