Filed 3/17/22 P. v. Haggerty CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Connie R. Quinones, Judge. Affirmed.

Jonathan E. Demson, 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 Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

In 2007, appellant Deion Haggerty was convicted of, among other crimes, three counts of attempted willful, deliberate and premeditated murder. On appeal, he argues that the trial court erred in summarily denying his Penal Code section 1170.95 petitions without appointing counsel.[1] We affirm because appellant was ineligible for relief both at the time of the trial court’s February 2021 denial – and even now under recent amendments to section 1170.95. Those amendments added attempted murder to the crimes for which resentencing was available under the statute. We conclude that appellant is nevertheless ineligible for section 1170.95 relief because he was not convicted of attempted murder under the natural and probable consequences doctrine.

FACTUAL AND PROCEDURAL BACKGROUND

1. Underlying Convictions

In 2006, appellant was the driver in a drive-by shooting that occurred on East 121st Street in Los Angeles. A jury convicted him of attempted willful, deliberate, and premeditated murders of three individuals (§§ 187, subd. (a); 664, subd. (a)); three counts of assault by machine gun or assault weapon (§ 245, subd. (a)(3)); possession of a firearm by a felon (§ 12021, subd. (a)(l)); and shooting at an occupied motor vehicle and an inhabited dwelling house (§ 246). Additional firearm and gang allegations were found true. The trial court did not instruct the jury on the natural and probable consequences doctrine.

Another panel of this court affirmed the convictions. (People v. Haggerty (Jan. 8, 2009, B205550) 2009 WL 41428.)

2. Petitions for Resentencing

On February 8, 2021, appellant filed two identical section 1170.95 petitions for resentencing on the three attempted murder counts. Without appointing counsel, the trial court summarily denied both petitions because appellant was convicted of attempted murder, not murder, and attempted murder at that time was not a qualifying crime. The court wrote: “the petitioner is not entitled to relief as a matter of law per [section] 1170.95, for the following reason: [¶] the petitioner was not convicted of murder.”

DISCUSSION

On appeal, appellant contends the trial court committed prejudicial error by summarily denying his petitions without appointing counsel. We review the ruling de novo. (People v. Secrease (2021) 63 Cal.App.5th 231, 244.)

1. Appellant Was Entitled to Appointment of Counsel at the Section 1170.95 Hearing

In its ruling on appellant’s section 1170.95 petitions, the court followed a series of Court of Appeal decisions that had held that the statute did not apply to attempted murder (see, e.g. People v. Munoz and People v. Lopez).[2] On April 9, 2021, appellant filed his notice of appeal. During the pendency of the appeal, two events occurred that inform our analysis of this matter. First, the Supreme Court issued its opinion in People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis) which held “petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition (see § 1170.95, subds. (b), (c)).” The second event was that the Legislature passed, and the Governor signed into law Senate Bill No. 775 (Stats. 2021, ch. 551, § 2) which, effective January 1, 2022, amended section 1170.95 to include attempted murder. (§ 1170.95, subd. (a).) Respondent acknowledges that because the amendments to section 1170.95 are now in effect, “this Court may, in the interests of judicial economy, decide what effect the amended section 1170.95 will have on this appeal at this time.”

The court did not appoint counsel for appellant before denying the petition. Lewis holds that counsel must be appointed if the section 1170.95 petition is facially sufficient. (Lewis, supra,11 Cal.5th at p. 957.) Appellant argues that under existing law, his petition is facially sufficient because section 1170.95 now applies to attempted murder. Under this argument, the matter should be remanded with directions to the trial court to appoint counsel and conduct further proceedings under section 1170.95. Respondent argues that, the change in law notwithstanding, this court should not remand to the trial court because defendant is ineligible for section 1170.95 relief as a matter of law. The failure to appoint counsel was, therefore, harmless.

2. Any Failure to Appoint Counsel for Appellant Was Harmless Because Appellant Does Not Qualify For Relief Under Section 1170.95 as a Matter of Law

Appellant contends that the failure to appoint counsel was prejudicial and warrants reversal. We test this error for prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Lewis, supra, 11 Cal.5th at pp. 957–958.) Under Watson, an error is harmless unless “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, at p. 836; see also People v. Mancilla (2021) 67 Cal.App.5th 854, 864 [Watson test applies to failure to appoint counsel in section 1170.95 proceedings].)

Respondent concedes that a defendant convicted of attempted murder may, under the current statute, be eligible for resentencing, but argues that appellant does not qualify for relief even with the change in law because he was not convicted under the natural and probable circumstances theory: “[A]ppellant was convicted of three counts of attempted willful, deliberate, and premeditated murder. The only theory of attempted murder on which the jury was instructed required malice aforethought by appellant personally. The jury was not instructed on the natural [and] probable consequences doctrine. Thus, the record shows as a matter of law that appellant was convicted under a theory of murder that remains valid after Senate Bill [Nos.] 775 and 1437.”

Respondent is correct. The record is clear that appellant was not convicted under the natural and probable circumstances theory of liability, but for express malice attempted willful, deliberate and premeditated murder. The jury instructions and prosecutor’s argument confirm our conclusion.

The Instructions. At the time of appellant’s trial, the relevant CALJIC Instruction on natural and probable circumstances was, as it is now, No. 3.02. (See CALJIC 3.02 (Fall 2007 ed.).) The Clerk’s Transcript for appellant’s initial appeal includes the jury instructions. The court instructed the jury on No. 3.01, the basic theory of aiding and abetting liability (but with no mention of natural and probable circumstances). It did not instruct on No. 3.02. This was not by inadvertence. At an instruction conference among court and counsel, the trial court expressly referred to No. 3.02 (and to No. 3.03 on termination of aider and abettor liability), and said, “Those are out.”[3]

Instead, the court instructed on the elements of attempted murder from CALJIC 8.66, and told the jury that to find appellant guilty of attempted murder, he must have “harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.” The court also instructed the jury on No. 8.67, attempted willful, deliberate, and premeditated murder, which included the following:

“If you find that the attempted murder was preceded and accompanied by a clear, deliberate intent to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate, and premeditated murder.”

The Prosecutor’s Argument. The prosecutor did not mention the natural and probable consequences doctrine in his closing argument. A sample of his argument shows that the prosecution’s theory was that appellant acted with express malice when he committed attempted willful, deliberate, and premeditated murder as an aider and abettor:

“The first question you might have – we covered this during jury selection – is he’s not the shooter. How is he legally guilty of these crimes without being the shooter? . . . All principals in a crime are equally guilty regardless of their role.

“That’s how it works. That’s fair because otherwise you’d get kids or other people to do your crime for you, and in the end you go, hey, I just drove, I was just a lookout. I wasn’t a shooter. I didn’t take the money. This is how it works. This is why gang prosecutions deal with aiding and abetting all the time because you often have numerous people together, working together to commit a crime.

“Principals. What is a principal? People that directly or actively commit or attempt to commit the crime. Principals are divided into two people. I’m sorry, there are people that directly commit the crime, the shooters in this case, and there are people that aid and promote, someone who drives there and looks out. All part of the team. All equally guilty of the crime.

“Aiding and abetting requires a person to know the unlawful purpose. If you’re a cab driver and they say hey can you drive down this street, and someone pulls a gun and starts shooting, you’re driving and you’re not aiding and abetting. You need to help in some way, and you need to intend to help when you do that.

“Charge in this case [sic] first three counts are attempted murder. Pretty basic. What you figure. Direct but ineffectual step toward killing a person. I’m using language from the instruction, but what that means is you tried to kill someone, and it didn’t work. You had to intend to kill them when you did that.

[¶]

“Once you determine – this is important because juries get confused on this. Juries sometimes think a crime is attempted murder, and it’s attempted willful, deliberate, premeditated murder. Just so you know, the crime is attempted murder. There’s then a special allegation that it’s done willfully, deliberately, and premeditated. Once you determine it’s attempted murder, yes or no. If it’s yes, you put a guilty on the verdict sheet, then you decide if it’s willful or premeditated. You could decide, yes, it’s attempted murder, but no, I don’t think they planned it. If no, not guilty on the verdict sheet.

“What is willful, deliberate, and premeditated? Big words. It just means you intended to do it, you thought about it before hand, and it was formed by careful thought. You can read it up there.”

The jury found appellant guilty of three counts of attempted willful, deliberate, and premeditated murder. For each count, the jury found true that appellant committed those offenses “willfully, deliberately, and with premeditation.”

The prosecutor never argued, the court never instructed on, and the jury was not asked to consider a natural and probable consequences theory of liability. Rather, the case was presented to the jury on an express malice, intent to kill theory. “When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person ‘must share the specific intent of the [direct] perpetrator,’ that is to say, the person must ‘know[ ] the full extent of the [direct] perpetrator’s criminal purpose and [must] give[ ] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator’s commission of the crime.’ [Citation.] . . . the person guilty of attempted murder as an aider and abettor must intend to kill.” (People v. Lee (2003) 31 Cal.4th 613, 624.) The jury’s finding that appellant had the specific intent to kill the victims when he drove the shooters precludes appellant from obtaining relief under section 1170.95.

Appellant did not file a reply brief addressing respondent’s argument that appellant was not tried on a natural and probable circumstances theory. After briefing was complete, appellant filed a “New Authority Update Letter,” citing People v. Langi (2022) 73 Cal.App.5th 972, 978–983 (Langi). He stated he filed the letter in light of respondent’s argument that the jury was not instructed on the natural and probable consequences doctrine and the Langi court reversed the denial of the section 1170.95 petition.

Appellant is correct that in Langi the jury was not instructed on natural and probable circumstances, and it is true the appellate court remanded for further section 1170.95 proceedings. Langi is inapt, however, as the focus of the appellate court’s inquiry was the second part of section 1170.95, subdivision (a): A defendant is eligible for relief if he or she is convicted “ ‘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.’ ” (Langi, supra, 73 Cal.App.5th at p. 975, citing § 1170.95, subd. (a); italics added.) The defendant was charged with felony murder arising out of a fist fight among several individuals. The victim took a punch to the face, stumbled, hit his head, and died. (Id. at p. 976.) The jury acquitted the defendant of felony first degree murder and found him guilty of second degree murder. (Id. at p. 977.) The court found the second degree murder instructions were ambiguous and the jury might have found the defendant guilty on an imputed malice theory even without a natural and probable circumstances instruction. (Id. at pp. 982-984; see People v. Powell (2021) 63 Cal.App.5th 689, 712–714 [standard aiding-and-abetting instructions are ill suited to second degree murder].)

The present case was an attempted murder case. There were no confusing instructions on second degree murder or any uncertainty between first and second degree murder. As we have observed, the jury instructions here required appellant to harbor the “specific intent to kill unlawfully another human being.”

DISPOSITION

The February 16, 2021 order denying appellant Deion Haggerty’s petitions under section 1170.95 is affirmed.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

KIM, J.

[1] All further undesignated statutory references are to the Penal Code.

[2] The California Supreme Court subsequently vacated both opinions and ordered them not-citable. (People v. Munoz (Sept. 6, 2019) B283921, opn. ordered depub. Jan. 5, 2022, S258234; People v. Lopez (Aug. 21, 2019) B271516, opn. ordered depub. Nov. 10, 2021, S258175.) We refer to these cases not as existing authority but as an historical reference to the then-existing authority when the trial court denied appellant’s section 1170.95 petition.

[3] The transcript reveals the following discussion:

“The court: We’ve gone over instructions in chambers. We have copies of each. They’re in the same order each one. Is there any objection or any addition or subtraction at this time?

“[Defense Counsel]: Not by the defense.

“[Prosecutor]: Not from anything we discussed in chambers. Although, I had put 3.02 and 3.03 into the packet. Those were the principles liability for natural and probable consequences and termination of liability for aider and abettor.

“The court: Those are out.”