Filed 4/27/22 P. v. Morales CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed.

John Anthony Morales, in pro. per., and Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant, John Anthony Morales, filed four petitions for resentencing pursuant to Penal Code section 1170.95,[1] the first of which the court denied, the second of which the court denied with prejudice, and the third and fourth of which the court dismissed. After defense counsel filed a notice of appeal, this court appointed counsel to represent defendant.

Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738, setting forth a statement of facts, a statement of the case, and identifying two potentially arguable issues: (1) whether the superior court erred in denying defendant’s petition; and (2) whether the denial constituted prejudicial error. We affirm.

Defendant was offered the opportunity to file a personal supplemental brief, which he has done. Defendant appears to contend that he should be eligible for section 1170.95 relief because evidence of a murder, for which he had previously been tried and acquitted, was used against him at his subsequent trial for robbery. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

By third amended information filed November 17, 2000, the People charged defendant with murder (§ 187, count 1), two counts of robbery (§ 211, counts 2 & 3), and unlawful possession of a firearm (former § 12021, subd. (a)(1), count 4). The People additionally alleged that in his commission of the counts 1, 2, and 3 offenses, defendant personally used a firearm (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)); that a principal in the count 1 offense intentionally discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)); that the murder was committed while defendant was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)); that the murder was committed while defendant was engaged in a burglary (§ 190.2, subd. (a)(17)); and that the murder and robberies were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The People also alleged defendant had suffered two prior prison terms (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)), and two prior strike convictions (§§ 667, subds. (c) & (e), 1170.12, subd. (c)). (People v. Morales (2003) 112 Cal.App.4th 1176, 1184 (Morales).)

On December 20, 2001, a jury convicted defendant of unlawful possession of a firearm (former § 12021, subd. (a)(1), count 4). The jury did not reach a verdict as to the counts 2 and 3 offenses; the court declared a mistrial as to those counts. The jury acquitted defendant of murder. (Morales, supra, 112 Cal.App.4th at p. 1184.)

On or about May 28, 2002, the court arraigned defendant on a fourth amended information. A jury convicted defendant of two counts of attempted first degree robbery (§§ 664, 211, counts 1 & 2) and first degree robbery (§ 211, count 3). The jury found true allegations as to each count that defendant personally used a firearm (§ 12022.53, subd. (b)); that a principal discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)); and that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The court found true the allegations that defendant had suffered two prior prison terms (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)), and two prior strike convictions (§§ 667, subds. (c) & (e), 1170.12, subd. (c)). (Morales, supra, 112 Cal.App.4th at pp. 1178, 1184.) On July 12, 2002, the court sentenced defendant to an aggregate term of imprisonment of 56 years eight months to life. (Ibid.)

Defendant appealed contending: (1) his acquittal for felony murder estopped his prosecution for robbery at the second trial; (2) there was insufficient evidence he aided and abetted the robbery or attempted robbery; (3) the People committed prosecutorial misconduct by presenting perjurious testimony; (4) insufficient evidence supported the gang enhancements; (5) the court erred in admitting letters he wrote or received while in jail awaiting trial; (6) his counsel rendered ineffective assistance of counsel by failing to request a voluntary intoxication instruction; (7) the court erred in failing to instruct the jury on the prosecution’s burden of proving the charged robberies were committed in concert; (8) the court erred in failing to inquire and admonish the remaining jurors after it dismissed two jurors for misconduct; and (9) the court erred in instructing the jurors to report misconduct.[2] (Morales, supra, 112 Cal.App.4th 1176; People v. Morales, supra, E032037.) This court affirmed the judgment in its entirety. (Morales, at p. 1199.)

On March 16, 2020, defendant filed a form petition for resentencing in which he alleged that a complaint, information, or indictment had been filed against him allowing the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. Defendant additionally alleged there had been a prior determination by a court or jury that he was not a major participant and did not act with reckless indifference to human life. Therefore, defendant maintained he was entitled to be resentenced pursuant to section 1170.95. On June 26, 2020, the court denied defendant’s petition finding that he did not qualify for section 1170.95 relief.

On April 28, 2021, defendant filed a second petition for resentencing identical to the one he formerly filed except he also filed it in another case and alleged that he was not the actual killer. On May 21, 2021, the court denied the petition with prejudice.

On June 3, 2021, defendant filed a third petition for resentencing. On June 25, 2021, the court dismissed the petition. On September 21, 2021, defendant filed a fourth petition for resentencing. At a hearing on October 8, 2021, the People noted: “This defendant was convicted only of attempted robbery and robber[y]. There is no murder count, so he’s not eligible for relief under Penal Code section 1170.95. People would request a summary denial.” Defense counsel objected. The court dismissed the petition. Defense counsel filed a notice of appeal.

II. DISCUSSION

Defendant appears to contend that he should be eligible for section 1170.95 relief because evidence of the murder, for which he had previously been tried and acquitted, was used against him at his subsequent trial. Thus, he argues that he should be afforded section 1170.95 relief “based on the jury ‘hearing’ of the murder case in which he was found not guilty . . . .” We disagree.

“Senate Bill 1437 [(2017-2018 Reg. Sess.)] was enacted to ‘amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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.’ [Citation.] Senate Bill 775 [(2021-2022 Reg. Sess.)] became effective while this appeal was pending. The legislation modifies section 1170.95 [Stats. 2021, ch. 551, § 2)] to clarify ‘that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.’” (People v. Cortes (2022) 75 Cal.App.5th 198, 203.)

“Pursuant to amended section 1170.95, an offender must file a petition in the sentencing court averring that: ‘(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[;] [¶] [and] (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.” (Cortes, supra, 75 Cal.App.5th at pp. 203-204.) “If a petition fails to comply” with these requirements “‘the court may deny the petition without prejudice to the filing of another petition.’” (People v. Lewis (2021) 11 Cal.5th 952, 960 (Lewis).)[3]

Here, defendant’s petitions were facially insufficient because they failed to allege that he had been convicted of murder, attempted murder, or manslaughter, the only offenses for which section 1170.95 provides relief. Thus, the superior court properly denied and dismissed defendant’s petitions.

Moreover, “‘[o]n appeal, the defense bears the burden of showing both error and prejudice.’” (People v. Scully (2021) 11 Cal.5th 542, 567.) Here, defendant has failed to show that any evidence from his murder trial was adduced at his subsequent trial at all, or that there was any error in admitting any such evidence. Furthermore, a section 1170.95 petition is not the proper vehicle for challenging the evidence admitted at trial. Defendant forfeited any argument that there was any error in the admission of evidence at his second trial by failing to raise it in the trial court and by not raising it on appeal from the judgment 19 years ago. “California law prohibits a direct attack upon a conviction in a second appeal . . . .” (People v. Senior (1995) 33 Cal.App.4th 531, 535, 538 [“[W]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay.”]; see In re Harris (1993) 5 Cal.4th 813, 829 [“Proper appellate procedure thus demands that, absent strong justification, issues that could be raised on appeal must initially be so presented . . . .”], disapproved on other grounds as stated in Shalabi v. City of Fontana (2021) 11 Cal.5th 842, 846, fn. 2.)

Also, as this court noted in People v. Morales, supra, E032037, our prior nonpublished opinion from the judgment, “[t]he jury was not instructed on the natural and probable consequences doctrine.” Thus, even if section 1170.95 relief extended to persons convicted of robbery and attempted robbery, defendant would remain ineligible because the jury was not instructed with the felony murder rule or the natural and probable consequences doctrine.[4] (People v. Soto (2020) 51 Cal.App.5th 1043, 1055 [Where the jury was not instructed on felony-murder or the natural and probable consequences theories, “the jury necessarily found [the defendant] culpable . . . based on his own actions . . .” and, therefore, the defendant was ineligible for section 1170.95 relief as a matter of law.]; see People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review granted July 22, 2020, S262835 [“f 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.”]; [i]People v. Cornelius (2020) 44 Cal.App.5th 54, 58 [The defendant “was ineligible for relief because he was not convicted of felony murder or murder as an aider or abettor under a natural consequences theory.”].)

Finally, to the extent defendant contends that denying him section 1170.95 relief is violative of equal protection guarantees, defendant has failed to show that he is similarly situated to those convicted of murder, attempted murder, and manslaughter under the felony murder rule or natural and probable consequences doctrine. (People v. Mancilla (2021) 67 Cal.App.5th 854, 869-870.) “Given the express intent of Senate Bill 1437 ‘to more equitably sentence offenders in accordance with their involvement in homicides’ [citations], offenders who [committed robbery and attempted robbery] are not similarly situated for purposes of section 1170.95.” (Id. at p. 870, italics added.)

III. DISPOSITION

The order denying defendant’s petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.

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

[2] On the court’s own motion, we take judicial notice of the unpublished portion of this court’s opinion from defendant’s appeal of the judgment, which was certified for partial publication. (People v. Morales (Oct. 27, 2003, E032037) [nonpub. opn.]; Evid. Code, § 459.)

[3] The Legislature amended section 1170.95 to, in part, apply to convictions for attempted murder. (Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.) “The amendment also codifies certain holdings in Lewis . . . .” (People v. Mejorado (2022) 73 Cal.App.5th 562, 568, fn. 2.)

[4] We know the jury was not instructed on the felony-murder rule because the People did not charge defendant with murder in the case from which defendant is seeking relief.