Filed 2/17/21 P. v. Demery CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Steven D. Blades, Judge. Affirmed.

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Daniel C. Chang and David W. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Simona Denise Demery appeals from the superior court’s order denying her petition under Penal Code section 1170.95.[1] That statute allows certain defendants convicted of murder under a natural and probable consequences theory to petition the court to vacate their convictions and for resentencing. Here, the court properly determined Demery was not tried for or convicted of murder under the natural and probable consequences doctrine and, accordingly, she is not eligible for resentencing. We affirm.

FACTS AND PROCEDURAL BACKGROUND

In 2000 the People charged Demery and her co-defendant Jefferey Jones with assault on a child causing death, murder, conspiracy to commit assault on a child resulting in death, and other crimes arising from the death of Demery’s three-year-old daughter Alicia V. As the facts of Demery’s crimes are irrelevant to our analysis, we summarize them only briefly.

Demery and her boyfriend Jones were living in an abandoned storefront in Pomona with Demery’s twin daughters, Alicia and Ebony, age three. On May 7, 2000, Demery reported to police that Alicia had disappeared from a park. In the weeks leading up to May 7, witnesses had seen “very noticeable marks and bruises” on the girls. Demery’s mother told authorities Demery had “beat[en]” and “[a]busively hit” the children. A pediatric examination of Ebony five days after Alicia disappeared revealed “pattern marks” of “bruises and scars,” “indicating she had been hit with an object such as a clothes hanger or an electrical cord.” Ebony had lost weight and “appeared to be ill without any obvious medical cause.” (People v. Demery (Nov. 8, 2002, B152859) [nonpub. opn.] (Demery I).)

Demery told police Jones had hit Alicia with a belt in the week before her death. Demery said she had spanked Alicia with a belt about two weeks earlier, and Alicia had “hit her head on the wall and apparently passed out.” Demery claimed that on the morning of May 6, Jones woke her up and told her Alicia was dead. Demery and Jones then buried Alicia’s body in “an empty field that was littered with trash and discarded appliances.” Alicia’s body was never found. (Demery I.)

The People charged Demery and Jones with murder (count 1), assault on a child under eight causing death (count 2), conspiracy to commit the crime of assault on a child under eight resulting in death (count 8), conspiracy to obstruct justice (count 9), conspiracy to destroy or conceal evidence (count 10), and several counts of child abuse or endangerment and corporal injury to a child as to both Alicia (counts 4 and 6) and Ebony (counts 3, 5, and 7). In 2001, a jury convicted Demery on all counts, finding the murder to be in the second degree.

The trial court sentenced Demery to 33 years, eight months to life in the state prison. The court chose count 8—conspiracy to commit the crime of assault on a child under eight resulting in death—as the principal count, imposing an indeterminate sentence of 25 years to life. The court imposed indeterminate sentences of 15 years to life and 25 years to life, respectively, on the murder and assault on a child under eight causing death counts, and stayed those sentences under section 654. The court imposed consecutive determinate sentences on counts 3, 5, 9, and 10 (totaling eight years, eight months), and stayed the determinate sentences on counts 4, 6, and 7. In November 2002, this court affirmed Demery’s conviction. (Demery I.)

After Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) took effect, Demery filed on February 5, 2019 a petition for resentencing under section 1170.95. Demery used a downloadable form. In the copy of the form in the record on appeal, it does not appear Demery checked any of the boxes, except box 8 (concerning service of the petition), nor did she fill in her name on the declaration line on page 2. The district attorney seems not to have objected to these omissions, and the trial court and prosecutor treated Demery’s petition as if she had properly executed her declaration and checked the applicable boxes.

On March 15, 2019, the court set a review date on the resentencing petition for March 29. On April 8, 2019, Demery filed a request that counsel be appointed. The court granted that request and appointed counsel for her.[2]

On September 25, 2019, the district attorney filed a response to Demery’s petition. The prosecution contended Demery’s jury was not instructed on either felony murder or the natural and probable consequences doctrine; therefore she was not convicted of murder under either of those theories; therefore she was ineligible for relief under section 1170.95. The prosecution also argued SB 1437 was unconstitutional. The prosecution attached copies of our November 2002 opinion affirming Demery’s conviction and of the instructions given to the jury at her trial.

On January 15, 2020, the public defender filed a reply to the prosecution’s opposition. Counsel noted the trial court had instructed Demery’s jury with CALJIC Nos. 8.11 (defining express and implied malice), 8.31 (defining second degree murder), 3.40 (act causing death/“but for” test), and 6.11 (members of conspiracy are liable for acts of other members in furtherance of conspiracy). Counsel quoted from CALJIC No. 3.40: “A cause of the death is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death and without which the death would not occur.” (Emphasis omitted.) Counsel argued, “The combination of the natural probable consequences [sic] language, imputing malice through conspiracy charges not including conspiracy to commit murder, and a ‘but for’ test that comingles specific and general intent, created a situation where intent for the murder charge was imputed on [Demery].”

On January 16, 2020, the trial court denied Demery’s petition in a written order. The court rejected the prosecution’s argument that SB 1437 is unconstitutional. The court then stated that—because Demery was not convicted of second degree murder under a theory of either felony murder or natural and probable consequences—“she does not qualify for relief under the statute.”

The court quoted from a 2018 pamphlet published by Re:Store Justice—“an organization committed to helping inmates navigate the justice system”—which, according to the court, “worked with State Senator Nancy Skinner to help create and pass SB 1437.” The pamphlet noted there was “ ‘a lot of confusion’ ” because “ ‘the phrase “natural and probable consequence” appears in a lot of other jury instructions that do not convey the theory of murder as a natural and probable consequence of aiding and abetting a target crime.’ ” The pamphlet explained, “ ‘The [natural and probable consequences] theory that allows a petitioner to petition for resentencing will almost always include a jury instruction that talks about a “target” crime. See CALCRIM [No.] 402, CALJIC [No.] 3.02.’ ”

The court wrote it “appear[ed] from the record and the information submitted by both sides that the trial court did not instruct [Demery’s] jury on [CALJIC No.] 3.02.” The court added, “The unpublished opinion of the Court of Appeal does not reflect that the jury was instructed on the natural and probable consequences theory of murder or that the prosecution relied on that theory.”

DISCUSSION

To be eligible for resentencing under section 1170.95,[3] Demery must have been tried and convicted under either (1) the felony murder rule or (2) the natural and probable consequences doctrine. (§ 1170.95, subd. (a); People v. Verdugo (2020) 44 Cal.App.5th 320, 323, review granted Mar. 18, 2020, S260493 (Verdugo); People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-1167 (Nguyen).) She was not tried or convicted under either of these theories.[4]

In the superior court, citing the instructions given to the jury at her trial, Demery confused the use of the phrases “natural consequences” and “direct, natural and probable consequences” in other jury instructions with the natural and probable consequences doctrine for accomplice liability within the meaning of section 1170.95. The trial court did not instruct the jury at Demery’s trial on aiding and abetting, much less the natural and probable consequences doctrine. The jury instructions attached to the prosecution’s response in the trial court do not include CALJIC No. 3.02 or any other instruction equivalent to CALCRIM Nos. 402 and 403, instructing the jury on any target crime on which murder based on a natural and probable consequences theory could be predicated.

On appeal, Demery abandons her jury instructions argument and contends instead that, because she checked the boxes on the form petition,[5] “the petition stated a prima facie case, and as such the trial court was statutorily required to hold a hearing to determine whether to vacate the murder conviction and recall the sentence.” Demery does not cite—much less distinguish—the many cases holding that section 1170.95’s petitioning process includes (1) an initial review to determine the petition’s facial sufficiency and (2) a prebriefing “first prima facie review” to determine preliminarily whether the petitioner is statutorily eligible for relief as a matter of law before reaching (3) the second, postbriefing review to determine whether she has made a prima facie case that she is entitled to relief. (See, e.g., Verdugo, supra, 44 Cal.App.5th at pp. 323, 327-330; People v. Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review granted Aug. 12, 2020, S263219; People v. Perez (2020) 54 Cal.App.5th 896, 903-904, review granted Dec. 9, 2020, S265254; Nguyen, supra, 53 Cal.App.5th at pp. 1165-1166.)

As our colleagues in Division Seven have noted, “the court’s role in conducting the first prima facie review of the petition . . . must be something more than simply determining whether the petition is facially sufficient.” (Verdugo, supra, 44 Cal.App.5th at p. 328.) “The court’s role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner.” (Id. at p. 329.) The statute “directs the court in considering the facial sufficiency of the petition to access readily ascertainable information”—“documents in the court file or otherwise part of the record of conviction.” (Ibid.) Based on this threshold review, the court can dismiss any petition filed by a person who is ineligible for relief as a matter of law—for example, someone who was not convicted of felony murder or murder under the natural and probable consequences theory. (See People v. Edwards (2020) 48 Cal.App.5th 666, 673-674 (Edwards), review granted July 8, 2020, S262481 [trial court considered jury instructions and reporter’s transcript of prosecutor’s closing argument in determining petitioner had not been convicted of felony murder or murder under the natural and probable consequences doctrine]; People v. Soto (2020) 51 Cal.App.5th 1043, 1049-1050, 1058-1059, review granted Sept. 23, 2020, S263939 [trial court could rely on jury instructions in assessing prima facie showing under section 1170.95; CALJIC Nos. 8.11 and 8.31 are not instructions on natural and probable consequences doctrine]; People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review granted July 22, 2020, S262835 [“if the jury was not instructed on a natural and probable consequences or felony-murder theory of liability, the petitioner could not demonstrate eligibility as a matter of law because relief is restricted to persons convicted under one of those two theories”].)[6]

In short, the superior court did not err in denying Demery’s petition for resentencing. (See Tarkington, supra, 49 Cal.App.5th at p. 899 [petitioner ineligible as a matter of law where jury not instructed on natural and probable consequences doctrine or felony murder rule]; Edwards, supra, 48 Cal.App.5th at p. 674 [although jury instructions included phrase “natural and probable consequences,” petitioner ineligible because record of conviction showed he was not convicted of murder under the natural and probable consequences doctrine directed at accomplice liability]; Nguyen, supra, 53 Cal.App.5th at p. 1157 [petitioner did not make requisite prima facie showing that he was convicted of murder under a natural and probable consequences theory]. Cf. People v. Roldan (2020) 56 Cal.App.5th 997, 1004, review granted Jan. 20, 2021, S266031 [affirming summary denial of section 1170.95 petition where defendant “failed to meet the threshold requirement of showing he was convicted under a natural and probable consequences theory”; by convicting defendant of second degree DUI murder under People v. Watson (1981) 30 Cal.3d 290, jury found he acted with implied malice].)[7]

DISPOSITION

We affirm the superior court’s order denying Simona Denise Demery’s petition to vacate her murder conviction and for resentencing under section 1170.95.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

I concur:

DHANIDINA, J.

LAVIN, J., Concurring :

I agree we should affirm the trial court’s order because any error in this case was harmless under any standard of prejudice. (See People v. Watson (1956) 46 Cal.2d 818; Chapman v. California (1967) 386 U.S. 18.) Simona Denise Demery’s jury was not instructed on either felony murder or the natural-and-probable consequences doctrine. Because Demery was convicted under a valid theory of murder, she is ineligible for relief under Penal Code section 1170.95.

LAVIN, Acting P. J.

[1] References to statutes are to the Penal Code.

[2] The court initially appointed counsel from the bar panel. At some point between April and November 2019, the office of the public defender assumed responsibility for the case.

[3] Demery’s petition sought resentencing only on the murder count. As noted, the trial court stayed Demery’s 15 years to life sentence on that count under section 654. The court sentenced Demery to 25 years to life on the count charging conspiracy to commit assault on a child under eight resulting in death. The court also stayed the 25 to life sentence on the count that charged assault on a child under eight causing death. As the Attorney General notes, any resentencing on the murder count would not affect Demery’s overall sentence or result in her release.

[4] Demery did not contend in the trial court—nor does she here—that she was tried or convicted of murder on a felony murder theory.

[5] As noted, the copy of the petition in the clerk’s transcript has only the proof of service box checked.

[6] While Demery has abandoned on appeal her reliance on CALJIC Nos. 3.40 and 6.11, as well as CALJIC Nos. 8.11 and 8.31, we note CALJIC No. 3.40 concerns the cause of death as “a direct, natural and probable consequence” of an act or omission. It has nothing to do with the natural and probable consequences doctrine. CALJIC No. 6.11 addresses the liability of coconspirators for one another’s acts. Not only does it have nothing to do with the natural and probable consequences doctrine, but Demery was not charged with or convicted of conspiracy to commit murder.

[7] As an alternative ground for denying Demery’s petition, the trial court stated, “In addition, it also appears that Petitioner is not eligible for relief because she was an active participant in the murder and the jury found that she acted with malice.” Demery complains the trial court relied on the facts in our opinion affirming Demery’s conviction and that “amounted to an unauthorized investigation improperly exceeding the four corners of appellant’s petition.” The issue of whether a superior court may “consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95” is currently before our Supreme Court. (People v. Lewis, review granted Mar. 18, 2020, S260598.) We need not reach this issue, as the trial court’s reliance on the jury instructions is sufficient to support its denial of Demery’s petition.