Filed 5/31/22 P. v. Swierski CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE COURT^[1]

Defendant Gary Swierski appeals from an order denying his petition for resentencing pursuant to Penal Code section 1170.95.[2] For the reasons set forth below, we dismiss the appeal.

I. Procedural Background

Defendant was convicted in 2012 of the first-degree murder of his wife and was sentenced to 25 years to life in prison. In 2014, this Court affirmed the judgment.[3]

On December 19, 2019, defendant filed a petition for writ of habeas corpus in the trial court raising 19 separate claims. The only claim that is the subject of this appeal is defendant’s argument that he is entitled to be resentenced under section 1170.95.

On February 7, 2020, the trial court denied defendant’s petition, finding that he had had not made a prima facie claim for relief under section 1170.95 because he was the actual killer of his wife.

Defendant mailed two notices of appeal on April 3 and April 5, 2020. The notices were filed on April 14, 2020. This court appointed counsel to represent defendant. On November 10, 2021, appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), stating the case and facts, raising no issues, but asking us to review the case pursuant to Wende. We notified defendant of his right to submit written argument on his own behalf pursuant to Serrano. On December 9, 2021, and February 10, 2022, defendant filed supplemental briefs.

2. Discussion

In defendant’s first supplemental brief, he argues he is entitled to be resentenced under Senate Bill No. 1437, and in his second supplemental brief, defendant argues he is entitled to be resentenced under Senate Bill No. 775.

A. Statutory Background

Senate Bill No. 1437, effective January 1, 2019, amended sections 188 and 189, which pertain to the definition of malice and the degrees of murder. (Stats. 2018, ch. 1015, §§ 2-3.) As amended, section 188 provides: “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (Stats. 2018, ch. 1015, § 2; § 188, subd. (a)(3).) The changes to the law were enacted to “amend the felony murder rule and 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 of the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)

“Additionally, Senate Bill No. 1437 added section 1170.95, which permits a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by Senate Bill No. 1437. (§ 1170.95, subd. (a).)” (People v. Flores (2020) 44 Cal.App.5th 985, 992 (Flores).) “If the petitioner makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and, absent a waiver and stipulation by the parties, hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner. ([§ 1170.95], subds. (c) & (d)(1).)” (Flores, at p. 992.)

Senate Bill No. 775, effective October 5, 2021, amended section 1170.95 to expand relief to those “convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine . . . .” (Stats. 2021, ch. 551, § 1; subd. (a).)

B. Analysis

In his supplemental briefs defendant asserts that the trial court erred in denying his section 1170.95 petition. He argues that because he was convicted of first-degree murder under the natural and probable consequences doctrine, he can no longer be convicted of murder and is entitled to relief under that section. Defendant also argues that pursuant to Senate Bill No. 775, which extends relief to convictions for attempted murder and manslaughter, he is entitled to be resentenced.

Defendant’s contention that he was convicted of first-degree murder under the natural and probable consequences doctrine is erroneous. A defendant is liable for murder under the natural and probable consequences doctrine if he aided and abetted the commission of criminal act (a target offense), and the principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 248.) Here, defendant admitted to killing his wife in self-defense. Defendant was convicted of murder solely on the theory that he was the actual killer. He thus could not have been convicted of murder on the theory that he aided and abetted the commission of the murder. (See People v. Perez (2005) 35 Cal.4th 1219, 1225; “If the defendant himself commits the offense, he is guilty as a direct perpetrator. If he assists another, he is guilty as an aider and abettor.”) The natural and probable consequences doctrine is not applicable to defendant’s case.

Further, defendant is not entitled to relief under Senate Bill No. 775. The amendments to section 1170.95 apply to those convicted of attempted murder or manslaughter under the natural and probable consequences doctrine. Here, defendant was convicted of murder, not attempted murder or manslaughter.

As defendant’s supplemental briefs do not raise an arguable issue on appeal from the order denying the petition for resentencing, we must dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)

3. Disposition

The appeal is dismissed.

[1] Before Greenwood, P. J., Lie, J. and Wilson, J.

[2] Further statutory references are to the Penal Code.

[3] People v. Swierski (Nov. 25, 2014, H038846) [nonpub. opn.].)