Filed 6/22/22 P. v. Knight CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Roger T. Ito, Judge. Affirmed.

Marilee Marshall, 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, Idan Ivri and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant William James Knight (defendant) appeals from the denial of his petition for vacatur of his attempted murder conviction and resentencing under Penal Code section 1170.95.^[1] He contends that the trial court erroneously denied the petition and that the matter should be remanded to the trial court for consideration pursuant to the amendments to section 1170.95, effective January 1, 2022. As defendant is ineligible for relief under the amended statute as a matter of law, we affirm the order denying his petition.

BACKGROUND

The 2009 attempted murder convictions

Defendant and codefendant Christian Araniva were convicted in 2009 of two counts of attempted murder (§§ 664, 187, subd. (a); counts 1 and 2) and one count of shooting at an inhabited dwelling (§ 246; count 3). The jury found true the allegation that the attempted murders were willful, deliberate, and premeditated. The jury also found true the allegations that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b) and that a principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1). As to all counts, the jury found that the crimes were committed for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(1)(C). The trial court sentenced defendant to a total prison term of 43 years four months to life, comprised of 15 years to life on count 1, plus a consecutive 10-year firearm enhancement, and 15 years to life plus three years four months for the firearm enhancement on count 2. As to count 3, the trial court imposed 15 years to life and stayed the term pursuant to section 654. Defendant appealed to this court, and we affirmed the judgment in People v. Araniva (Aug. 26, 2010, B218787) (nonpub. opn.).

We briefly summarize relevant facts from the evidence presented. The trial evidence showed that defendant and Araniva were members of the Rivera 13 gang, and both were armed with firearms when they went together to the home of Jared L., a member of a rival gang, Pico Nuevo (PN). The residence was occupied by Jared and several other PN gang members. Jared’s brother Jeffrey and a companion were in front of the house. Witnesses reported that one or both defendants fired a weapon, and Jeffrey ran into the house. His companion was injured. Jeffrey knew defendant, recognized him, and identified him in a field showup. A neighbor who saw the gunmen fleeing also identified defendant in a field showup. (People v. Araniva, supra, B218787.)

Section 1170.95

In 2018, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which amended the laws pertaining to felony murder and murder under the natural and probable consequences doctrine, “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.” (Stats. 2018, ch. 1015, § 1, subd. (f); see People v. Gentile (2020) 10 Cal.5th 830, 842.) Senate Bill 1437 also added section 1170.95, which provided a procedure for persons convicted of murder to retroactively seek relief if they could not be convicted under sections 188 or 189 as amended effective January 1, 2019. (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) The statute allowed such a person to seek vacatur of the murder conviction and resentencing by filing a petition alleging: (1) “[a] complaint, information, or indictment 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,” (2) he “was convicted of first degree or second degree murder following a trial,” and (3) he “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, former subd. (a).)

Effective January 1, 2022, section 1170.95 was amended by Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) to permit certain persons convicted of attempted murder to seek relief. (Stats. 2021, ch. 551, § 2.) Section 1170.95 now permits one convicted of attempted murder to petition to have the conviction vacated and to be resentenced if he or she met the requirements of section 1170.95, subdivision (a).

Where a petition alleges all three conditions, the trial court must appoint counsel, entertain briefing by both parties, and then “proceed[] to subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p. 960; see id. at p. 962.) If the court determines that a prima facie showing has been made, it issues an order to show cause and then holds an evidentiary hearing pursuant to section 1170.95, subdivision (d) to determine whether to vacate the conviction and resentence the petitioner.

Defendant’s section 1170.95 petition

In August 2020, prior to the passage of Senate Bill 775 extending section 1170.95 relief to those convicted of attempted murder, defendant filed a petition for vacatur and resentencing under former section 1170.95. Defendant submitted a form petition with interlineation to make it applicable to his attempted murder conviction. As we interpret the interlineation, the petition alleged in essence: an information was filed that allowed the prosecution to proceed under a theory of felony murder, murder and attempted murder under the natural and probable consequences doctrine, or attempted murder under a theory of aiding and abetting; defendant was convicted of attempted murder but could not now be convicted of attempted murder because of changes made to sections 188 and 189, effective January 1, 2019; defendant was not the actual perpetrator, did not aid and abet the actual perpetrator with intent to kill, nor was he a major participant in the crime or act with reckless indifference to human life; and the victim was not a peace officer.

Defendant requested counsel, which the trial court appointed. The court also received briefing from the prosecutor and defense. The trial court then scheduled a hearing “to assess whether the petitioner has made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p. 960; see id. at p. 962.) On April 28, 2021, the trial court found that defendant had failed to make a prima facie showing of eligibility under section 1170.95 and denied the petition without issuing an order to show cause.

Defendant filed a timely notice of appeal from the court’s order.

DISCUSSION[2]

As set forth in his opening brief, filed prior to January 1, 2022, defendant’s sole assignment of error was that the trial court declined to find a prima facie showing of eligibility under the statute, because section 1170.95 did not apply to attempted murder.

Contrary to defendant’s contention, the trial court did not hold that the statute was inapplicable or that it applied to attempted murder convictions. Rather the court held essentially that the record of conviction did not contain, and defendant had failed to present, evidence that would establish the required prima facie showing, even if the statute were applicable to attempted murder. The court explained that defendant was not convicted of felony murder, the natural and probable consequences doctrine was not advanced as a theory at defendant’s trial, and as defense counsel acknowledged, no instructions regarding felony murder or the natural and probable consequences doctrine were given.[3]

Despite the absence of instruction regarding the natural and probable consequences doctrine, defendant contends that the jury was in fact instructed regarding that theory.[4] Defendant argues that the natural and probable consequences theory of liability was before the jury because of the jury instruction on the possible lesser included offense of assault with deadly weapon (§ 245). He claims there was language in that instruction regarding the natural and probable consequence theory. The natural and probable consequences doctrine is a theory of vicarious liability of an aider and abettor of an intended (target) crime for an unintended (nontarget) crime committed by an accomplice. (People v. Gentile, supra, 10 Cal.5th at p. 838.) In the definition of assault, it describes the required criminal intent “‘which . . . is the general intent to wilfully commit an act the direct, natural and probable consequences of which, if successfully completed, would be the injury to another.’” (People v. Williams (2001) 26 Cal.4th 779, 787, quoting & italics added by People v. Rocha (1971) 3 Cal.3d 893, 899.) This has nothing to do with vicarious liability. Defendant claims the jury may have been confused because the jury had a question about the proposed lesser included offense and a question about aiding and abetting.

Defendant fails to indicate with a quote, paraphrase, or citation to the trial record just what instruction or jury questions support his argument. Thus we presume the jury understood and correctly applied the trial court’s instructions in the absence of any evidence in the record showing confusion or that the jury requested further guidance on the issue. (See People v. Gonzales (2011) 51 Cal.4th 894, 940.) Moreover, because defendant “does not expand on the issue with either argument or citation to relevant authority,” we decline to address it. (People v. Hardy (1992) 2 Cal.4th 86, 150.)

Defendant suggests that because he alleged the conditions for relief found in section 1170.95, subdivision (a) as amended, the petition makes a prima facie showing, and the matter must be remanded with directions to the trial court to issue an order to show cause and hold an evidentiary hearing pursuant to section 1170.95, subdivision (d). We do not agree that a prima facie showing is made simply by alleging all three conditions. Senate Bill 775, which extended the relief to qualified attempted murder defendants, clarified the procedure in section 1170.95, subdivision (c) at the prima facie stage, and expressly codified the holding of Lewis, supra, 11 Cal.5th 952 regarding the standard for determining the existence of a prima facie case. (See Stats. 2021, ch. 551, § 1(b).) An adequate petition does not advance the proceedings directly to an evidentiary hearing, but instead requires the trial court to appoint counsel, entertain briefing by both parties, and then to “proceed[] to subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p. 960; see id. at p. 962.)

At the section 1170.95, subdivision (c) prima facie stage, the trial court may examine the record of conviction, including the appellate opinion in the defendant’s underlying case. (Lewis, supra, 11 Cal.5th at p. 972.) If the record of conviction shows defendant is ineligible for relief as a matter of law, no prima facie showing can be made, and the petition is properly denied. (Id. at p. 971.) To be eligible for relief from a conviction of attempted murder, a petitioner must have been convicted under the natural and probable consequences doctrine. (§ 1170.95, subd. (a).) Defendant has admitted that no jury instructions were given regarding attempted murder under the natural and probable consequences. Thus he cannot make a prima facie showing and is ineligible for relief as a matter of law. (See People v. Daniel (2020) 57 Cal.App.5th 666, 677 [murder conviction].)

Were we to reverse the order denying the petition and remand for proceedings under subdivision (c) of section 1170.95, as defendant asks, defendant would be unable to make the required prima facie showing. Thus reversal and remand with instructions to the trial court to proceed according to section 1170.95, subdivision (c) would be an exercise in futility. Reversal for further proceedings is unwarranted when it would be “a useless and futile act and would be of no benefit to appellant.” (People v. Seldomridge (1984) 154 Cal.App.3d 362, 365.)

DISPOSITION

The order denying the petition is affirmed.

___________________________

CHAVEZ, J.

We concur:

_______________________________

ASHMANN-GERST, Acting P. J.

_______________________________

HOFFSTADT, J.

[1] All further statutory references are to the Penal Code, unless otherwise indicated.

[2] The People’s brief and defendant’s reply were both filed after the effective date of section 1170.95 as amended by Senate Bill 775. Both parties have thus had the opportunity to discuss the issues in relation to the amended statute and have not requested leave to file additional briefs.

[3] The jury was instructed with CALCRIM Nos. 400, general aiding and abetting, and 401, which stated “that ‘[s]omeone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.’” (People v. Araniva, supra, B218787.)

[4] Although his request for judicial notice of the 2009 trial record was granted, defendant cites only his argument in the trial court during the section 1170.95 proceedings and not to any particular part of the trial record.