Filed 6/14/22 P. v. Peters CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Shane A. Peters (appellant) appeals the trial court’s denial of his petition for resentencing under Penal Code section 1170.95.[1] We affirm.

BACKGROUND

2010 Conviction

Appellant and codefendant Joseph Evert Coley were charged with first degree murder (§ 187) and attempted murder (§§ 187, 664), with allegations that both crimes were gang-related and committed with the use of a firearm (§§ 186.22, subds. (b)(1) & (f), 12022.53, subds. (b), (c), (d), & (e)(1), 12022.5, subd. (a)(1)). (People v. Peters (Jan. 4, 2013, A131097) [nonpub. opn.].) The surviving victim told police Coley was driving a car that passed by when the shots were fired, but testified at trial he did not see a car or driver at the time of the shooting. (Ibid.) Two witnesses testified pursuant to plea agreements that they were in Coley’s car with Coley and appellant when the group saw the victims, one of whom was believed to be a rival gang member, and that appellant leaned out the passenger window and fired shots when they drove by them. (Ibid.) The weapon was never found, but text messages sent from appellant’s cell phone in the days following the murder appeared to refer to appellant having sold or traded a gun. (Ibid.) Appellant presented an alibi defense. (Ibid.)

The prosecutor presented two theories of first degree murder: the murder was deliberate and premeditated, and the murder was committed by shooting from a motor vehicle with the intent to kill. (§ 189, subd. (a).) The jury was instructed on the lesser included offense of second degree murder. (See CALCRIM No. 520.) The jury was also instructed on direct aiding and abetting, with instructions that identified appellant as the perpetrator and Coley as the aider and abettor. (See CALCRIM Nos. 400 & 401.) The jury was not instructed on felony murder or on the natural and probable consequences doctrine, or on any target offense other than murder and attempted murder.

The jury convicted appellant and Coley of second degree murder and attempted murder, and found true the gang allegations. (People v. Peters, supra, A131097.) The jury also found true as to Coley allegations that a principal to the crime of murder discharged a firearm. (Ibid.) The jury was unable to reach a verdict on the allegations that appellant personally used a firearm and, after the trial court declared a mistrial on those allegations, the People dismissed them. This court affirmed the judgment. (Ibid.)

2021 Section 1170.95 Petition

In February 2021, appellant filed a section 1170.95 resentencing petition and requested appointment of counsel. The People opposed the petition. The trial court, without appointing counsel, summarily denied the petition, finding appellant “was neither prosecuted nor convicted under a theory of felony murder or murder under the natural and probable consequences doctrine.”

DISCUSSION

I. Availability of Independent Review

Appellant’s counsel initially filed a brief raising no issues pursuant to People v. Wende (1979) 25 Cal.3d 436. We requested supplemental briefing on our obligation and discretion to independently review the record[2]; whether amendments to section 1170.95 effective January 1, 2022 (Stats. 2021, ch. 551, § 2), apply to appellant’s appeal; and whether, if so, the record of conviction conclusively eliminated the possibility that the jury found appellant guilty of murder on a theory under which malice was imputed to him based solely on his participation in a crime.

As to the first issue, the People do not contend we lack the discretion to independently review the record. We therefore need not decide whether we are obligated to conduct such a review, and instead exercise our discretion to do so in the interests of justice. (See People v. Flores (2020) 54 Cal.App.5th 266, 274 [“an appellate court can and should independently review the record on appeal when an indigent defendant’s appointed counsel has filed a Wende brief in a postjudgment appeal from a summary denial of a section 1170.95 petition”].)

II. Section 1170.95 Petition

In 2018, after appellant’s conviction became final, the Legislature “substantially modified the law relating to accomplice liability for murder. The amendment eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder [citation] and significantly narrowed the felony-murder exception to the malice requirement for murder,” and established the section 1170.95 petition procedure. (People v. Coley (2022) 77 Cal.App.5th 539, 543 (Coley).) After the trial court denied appellant’s section 1170.95 petition, the Legislature enacted Senate Bill No. 775 (2021—2022 Reg. Sess.), which again amended the relevant law, allowing such petitions to seek relief for murder convictions based on any “theory under which malice is imputed to a person based solely on that person’s participation in a crime.” (§ 1170.95, subd. (a)(1), as amended by Stats. 2021, ch. 551, § 2.) Both parties agree that the Senate Bill No. 775 (2021—2022 Reg. Sess.) amendments apply retroactively to appellant’s appeal. (See People v. Porter (2022) 73 Cal.App.5th 644, 652 [“[T]he trial court’s order denying the petition is not yet final and Senate Bill No. 775 has already taken effect. Therefore, the revisions set forth in Senate Bill No. 775 apply to the instant petition.”].)

Appellant argues that, even though the jury was not instructed on felony murder or on the natural and probable consequences doctrine, he may nonetheless have been convicted based on an impermissible theory, as was found in People v. Langi (2022) 73 Cal.App.5th 972 [288 Cal.Rptr.3d 809] (Langi). This court recently rejected the same argument asserted by appellant’s codefendant, Coley. (Coley, supra, 77 Cal.App.5th at p. 547.) Coley first discussed Langi: “In Langi, the defendant was part of a group who accosted the victim with the purpose of robbing him. [Citation.] The confrontation ended in a fistfight, and the victim was killed by a blow to the head suffered after he was punched by one member of the group. [Citation.] The defendant argued the jury could have found him guilty of aiding and abetting an implied malice murder ‘if it found that (1) the killing resulted from the actual killer’s intentional act; (2) [defendant] aided and abetted that intentional act; and (3) the killer “deliberately performed [the act] with knowledge of the danger to, and with conscious disregard for, human life”—whether or not [defendant] knew of or consciously disregarded the danger to human life.’ [Citations.] The defendant argued ‘[t]he instructions thus permitted the jury to impute malice to [him] based solely on his participation in a crime, without having to find that he personally acted with malice.’ [Citation.] The Court of Appeal agreed and remanded to the trial court for a hearing on whether the defendant could be convicted under the amended definition of murder.” (Ibid.)

Coley then explained how the case before it was distinguishable: “Assuming that aiding and abetting an implied malice murder can involve the imputation of malice based on participation in a crime even when no instructions have been given on the natural and probable consequences doctrine, Langi does not apply because that case involves implied malice. Here, as the trial court correctly found, [Coley’s] conviction for attempted murder demonstrates that he was convicted of second degree murder with express rather than implied malice. [¶] As a review of the record on conviction reveals, [Coley] was convicted of murder based on his aiding and abetting of the same shooting that gave rise to the attempted murder conviction. The jury was instructed by CALCRIM No. 600 that attempted murder requires a determination that ‘the defendants intended to kill that person.’ [Citations.] An intent to kill is the equivalent of express malice, at least when there is no question of justification or excuse, and by finding [Coley] guilty of attempted murder, the jury necessarily found he had personally harbored intent to kill or express malice when he aided and abetted the second degree murder.” (Coley, supra, 77 Cal.App.5th at p. 547.)

Appellant argues the jury could have convicted him either as the actual shooter or as a direct aider and abettor of the shooting. If it was the former, appellant is not eligible for relief under section 1170.95; if the latter, the reasoning in Coley applies. Accordingly, because the record of conviction conclusively eliminates the possibility that the jury found appellant guilty of murder on a theory under which malice was imputed to him based solely on his participation in a crime, the trial court’s summary denial of appellant’s section 1170.95 petition was appropriate.[3] Further, while appellant argues (and the People concede) the trial court erred in denying his petition without appointing counsel, appellant has failed to demonstrate “ ‘ “it is reasonably probable that if [appellant] had been afforded assistance of counsel [appellant’s] petition would not have been summarily denied without an evidentiary hearing.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 974.)

DISPOSITION

The judgment is affirmed.

SIMONS, Acting P. J.

We concur.

BURNS, J.

NEEDHAM, J.*

(A162911)

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

[2] The issue is currently pending before the California Supreme Court. (People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb. 17, 2021 (S266305).)

[3] To the extent appellant challenges the denial of his section 1170.95 petition as to his conviction for attempted murder, that challenge also fails for the same reason his codefendant’s did: “Section 1170.95 applies by its terms only to attempted murders based on the natural and probable consequences doctrine. (§ 1170.95, subd. (a) [“A person convicted of ... attempted murder under the natural and probable consequences doctrine ... may file a petition”].) The jurors in this case were not instructed on that doctrine. They were given CALCRIM Nos. 400 and 401, on the theory of direct aiding and abetting, as well as CALCRIM No. 600, which advised them that an attempted murder conviction required a finding that ‘the defendants intended to kill [the victim].’ Direct aiding and abetting remains a valid theory of attempted murder after the enactment of Senate Bill No. 775. [Citation.] The court was not required to grant resentencing on this count.” (Coley, supra, 77 Cal.App.5th at p. 548.)

* Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.