Filed 5/26/22 P. v. Hall CA2/1

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Idan Ivri, Deputy Attorneys General for Plaintiff and Respondent.

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Koeppel Hall appeals from an order denying his petition for resentencing under Penal Code[1] section 1170.95. In April 2020, we affirmed the order in an unpublished opinion. (People v. Hall, Apr. 29, 2020, B302462.) The Supreme Court granted review and, in February 2022, transferred the matter to this court with directions to reconsider the cause in light of its decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis) and the enactment of Senate Bill No. 775 (Reg. Sess. 2021−2022) (Stats. 2021, ch. 551) (Senate Bill No. 775). We have done so and, for the reasons set forth below, again affirm the order denying Hall’s petition for resentencing.

Factual and procedural summary

In 2007, a jury convicted Hall of nine counts of premeditated, deliberate attempted murder, shooting at a motor vehicle, shooting from a motor vehicle, and being a felon in possession of a firearm. (People v. Hall (Jan. 15, 2009, B199214) [nonpub. opn.] (Hall).)[2] The jury also found certain enhancement allegations true. (Ibid.) The court sentenced him to 60 years to life in prison. (Ibid.) We affirmed his convictions in an unpublished opinion filed in January 2009. (Hall, supra, B199214.)

On October 8, 2019, Hall filed a petition for resentencing under section 1170.95. In a declaration filed in support of the petition, Hall stated that he had been convicted of aiding “Nelson Banks of attempted [m]urder.” Hall stated that he was driving a truck when, “to [his] surprise . . . Banks fired at” another vehicle. He explained that he did not intend “for this to happen.”

In another supporting document, Hall states that a complaint had been filed against him “that allowed the prosecution to proceed under a theory of attempted premeditated murder.” He further states that he was not a “major participant” in the crime “and did not act with reckless indifference to human life.”

In October 2019, the trial court denied Hall’s petition. The court stated that it reviewed Hall’s “file and has determined that he has not been convicted of [first] or [second] degree murder. [¶] Instead, [Hall] has been convicted of nine counts of premeditated, deliberate attempted murder, of shooting at a motor vehicle, of shooting from a motor vehicle and of being a felon unlawfully in possession of a firearm.” The court concluded: “The petition is summarily denied because the petitioner is not entitled to relief as a matter of law, for the following reasons: [¶] The petitioner was not convicted of murder.”

Hall timely appealed.

We appointed appellate counsel for Hall, who filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Hall subsequently filed a supplemental brief.

On April 29, 2020, we filed our opinion affirming the trial court's order.

Hall filed a petition for review in the Supreme Court. In July 2020, the court granted the petition and deferred briefing pending its review of People v. Lewis (2020) 43 Cal.App.5th 1128, review granted March 18, 2020, S260598 and People v. Lopez (2019) 38 Cal.App.5th 1087, review granted November 13, 2019, S258175. (Supreme Ct. Minutes, July 8, 2020, p. 857.)

In July 2021, the Supreme Court decided Lewis, supra, 11 Cal.5th 952. In Lewis, the court held: (1) A petitioner who files a facially sufficient petition and requests counsel is entitled to the appointment of counsel (id. at pp. 962−963); (2) A trial court may consider the record of the petitioner’s conviction in determining whether the petitioner has made a prima facie case for relief under section 1170.95 (Lewis, supra, 11 Cal.5th at p. 971); and (3) A petitioner who was denied the right to counsel afforded by section 1170.95 and “ ‘whose petition is denied before an order to show cause issues has the burden [on appeal] of showing “it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing.” ’ ” (Lewis, supra, at p. 974).

In October 2021, the Legislature enacted Senate Bill No. 775, which amended section 1170.95 to allow relief for persons convicted of “attempted murder under the natural and probable consequences doctrine.” (Stats. 2021, ch. 551, § 2, p. 6971 [amending § 1170.95, subd. (a)].)

On February 16, 2022, the Supreme Court transferred the case to this court with directions to vacate our 2020 decision and reconsider the case in light of Lewis and Senate Bill No. 775. We vacated our decision accordingly.

We have received supplemental briefs from the parties and granted the Attorney General’s motion to take judicial notice of the jury instructions given in Hall’s trial.

Hall, through counsel, acknowledges that the jury in his case was not instructed on the natural and probable consequences doctrine. He contends, however, that certain other instructions allowed the jury to convict him of attempted murder “under an imputed malice theory.”

The Attorney General argues that the failure to appoint counsel for Hall was harmless because the record of conviction—in particular, the jury instructions—establish that Hall was not convicted based on the natural and probable consequences doctrine. He was, therefore, ineligible for relief as a matter of law. We agree with the Attorney General.

Discussion

Under Lewis, a petitioner who files a facially sufficient petition seeking relief under section 1170.95 and requests counsel is entitled to the appointment of counsel. (Lewis, supra, 11 Cal.5th at p. 963.) The Attorney General does not contend that Hall’s section 1170.95 petition is facially insufficient, and we will assume arguendo that it is facially sufficient.

Although Hall requested the trial court appoint counsel for him, the court denied the request. Under Lewis, the failure to appoint counsel in this situation requires reversal only if Hall can show a reasonable probability that his petition would not have been summarily denied if he had been afforded assistance of counsel. (Lewis, supra, 11 Cal.5th at p. 974). Hall fails to meet this standard if the record of his conviction, which includes the jury instructions, establishes that he is not entitled to relief as a matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666, 678 (Daniel), review dism. Dec. 1, 2021, S266336.)

Under Senate Bill No. 775, one who is convicted of attempted murder may be eligible for resentencing under section 1170.95 if the petitioner was convicted of that crime “under the natural and probable consequences doctrine.” (§ 1170.95, subd. (a)(1).) For purposes of section 1170.95, if jurors were not instructed as to the natural and probable consequences doctrine, the jury’s guilty verdict was not based on that doctrine as a matter of law. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055 (Soto), review dism. Nov. 17, 2021, S263939.)

Here, the jury that convicted Hall was instructed that the crime of attempted murder requires the “person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.” (CALJIC No. 8.66.) The jury was further instructed as to liability for direct aiding and abetting: That one aids and abets another in the commission or attempted commission of a crime when he or she acts “[w]ith knowledge of the unlawful purpose of the perpetrator” and “[w]ith the intent or purpose of committing or encouraging or facilitating the commission of the crime” (CALJIC No. 3.01).

The jury was not instructed as to the natural and probable consequences doctrine. Therefore, he could not be a person convicted of attempted murder under that theory. (See Soto, supra, 51 Cal.App.5th at p. 1055, review dism.; see also People v. Cortes (2022) 75 Cal.App.5th 198, 205 [because the petitioner’s “jury was not instructed on any theory of liability for murder or attempted murder that required that malice be imputed to him” he was “ineligible for resentencing under section 1170.95, subdivisions (a) and (b)”]; Daniel, supra, 57 Cal.App.5th at p. 677, review dism. [where jury was not instructed on natural or probable consequences doctrine, the petitioner was not a person convicted under a natural and probable consequences theory, and therefore “ineligible for relief [under section 1170.95] as a matter of law”]; 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”].) Therefore, he is not entitled to relief under section 1170.95 as a matter of law.

Hall refers us to CALJIC No. 3.01 [aiding and abetting], CALJIC No. 8.66 [attempted murder], CALJIC No. 8.66.1 [attempted murder—concurrent intent], CALJIC No. 8.67 [attempted murder—willful, deliberate, and premeditated], and asserts, without explanation, that the “upshot of these instructions was to allow the jury to convict [Hall] of attempted murder under an imputed malice theory.” None of the cited instructions, however, mention the natural and probable consequences doctrine or suggest that the jury could find Hall guilty of attempted murder on that basis. We therefore reject Hall’s argument.

After the parties filed supplemental briefs, Hall submitted a letter pursuant to rule 8.254 of the California Rules of Court informing this court of the recent opinion in People v. Langi (2022) 73 Cal.App.5th 972.) In Langli, the appellant was convicted of murder based upon his act of aiding and abetting an accomplice who committed second degree murder—that is, the appellant aided and abetted one who acted “with knowledge of the danger to, and with conscious disregard for, human life.” (Id. at p. 981.) The combination of the aiding and abetting instruction and the second degree murder instruction given in the appellant’s trial, however, created an ambiguity that allowed the jury “to conclude that, to be guilty as an aider and abettor of second degree murder, appellant need only have intended to encourage the perpetrator’s intentional act [of punching the victim,] whether or not appellant intended to aid or encourage [the victim’s] killing, and whether or not he personally knew of and disregarded the risk of such a killing.” (Id. at p. 983.) It was thus possible that the jury convicted appellant of murder without finding that he personally acted with malice. (Id. at pp. 983−984.) If so, the appellant would be entitled to relief under section 1170.95. (Langi, supra, 73 Cal.App.5th at p. 984.)

There was no similar ambiguity in the jury instructions in Hall’s trial. The jury had to find that the direct perpetrator of the attempted murder was required to have the mental state of “express malice aforethought, namely, a specific intent to kill unlawfully another human being.” To convict Hall as an aider and abettor, the jury had to find that Hall had “knowledge of the unlawful purpose of the perpetrator” and “the intent or purpose of committing or encouraging or facilitating the commission of the crime.” That is, the jury had to find that Hall knew of the perpetrator’s purpose—to kill unlawfully another human being—and that Hall personally intended to commit or encourage the perpetrator’s commission of attempted murder. In contrast to the circumstances in Langli, the instructions did not allow the jury to convict Hall of aiding and abetting attempted murder without finding that he personally acted with malice.

Disposition

The order denying Hall’s petition for resentencing is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

MORI, J.*

[1] Unless otherwise specified, subsequent statutory references are to the Penal Code.

[2] We take judicial notice of our opinion in Hall, supra, B199214. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.