Opinion
B313732
04-06-2022
THE PEOPLE, Plaintiff and Respondent, v. OLTON VERNELL DRAKE, Defendant and Appellant.
Richard D. Miggins, 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 Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. YA075152 Mark S. Arnold, Judge. Affirmed.
Richard D. Miggins, 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 Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Olton Vernell Drake (defendant) appeals from the denial of his petition for vacatur and resentencing filed pursuant to Penal Code section 1170.95. He contends that the trial court erred in denying his petition without issuing an order to show cause and holding an evidentiary hearing. Finding defendant's contention to be without merit, we affirm the order.
All further statutory references are to the Penal Code, unless otherwise indicated.
BACKGROUND
In 2012, defendant was convicted of one count of murder and six counts of attempted murder. The jury found true the allegation that four of the attempted murders were willful, deliberate, and premeditated. As to all counts, the jury found true the allegation that the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1). The jury also found true each allegation that a principal personally used a firearm, personally and intentionally discharged a firearm, and personally and intentionally discharged a firearm causing great bodily injury or death, within the meaning of section 12022.53, subdivisions (b), (c), and (d). Defendant admitted that he had suffered a prior serious or violent felony juvenile adjudication within the meaning the "Three Strikes" law, sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). The trial court sentenced defendant to a term in excess of 300 years in prison.This court affirmed the judgment in People v. Riser, supra, B245327.
The allegation that the attempted murders were willful, deliberate, and premeditated were not included on the verdict forms for counts 2 and 6.
The minute order of November 6, 2012, and abstract of judgment reflect a total term of 377 years eight months, while 338 years eight months is the total term stated in the trial court's oral pronouncement of sentence and in our appellate opinion affirming defendant's judgment. (See People v. Riser (Oct. 1, 2014, B245327 [nonpub. opn.].)
The evidence at trial showed that defendant and codefendant Deandre Brandon Riser were members of the West Side 118th Street Eucalyptus Gangster Crip gang. On April 29, 2009, Riser, defendant, and a fellow gang member clashed with members of their despised rival, the Lennox 13 gang. Defendant and fellow gang members had spent much of that day drinking at Eucalyptus Park, when a group of Lennox 13 gang members walked by the park "throwing" gang hand signs and yelling out the gang's name. A fistfight between members of the two gangs ensued. Another fight occurred later the same day.
That evening in an area the Lennox 13 gang claimed as its territory, Riser approached a taco truck with about 15 customers outside. He then fired a .22-caliber rifle toward a group of them.Six people suffered gunshot wounds, and one of them died. Riser walked quickly away after shooting and got into the passenger seat of a white two-door car, which was soon stopped by sheriff's deputies. The occupants (defendant, Riser and codefendant Helen Eva Spry) were detained. A rifle was found abandoned nearby. A DNA analysis later extracted from the rifle identified four people as possible contributors: defendant, Spry, Riser, and another person. Particles consistent with gunshot residue were found on defendant's hand.
We take our summary from the statement of facts in People v. Riser, supra, B245327.
Following their arrest defendant and Riser were placed in a jail cell together where their conversations were recorded the day after the shooting, about a week later, and a little over a month after that. Three hours of excerpted recordings were played for the jury. Defendant and Riser discussed their participation in the crime and Spry's involvement as the driver, blaming her for delaying their flight from the scene of the shooting. The two also discussed whether Spry and others would provide information to law enforcement. When defendant asked Riser, "Was you walking forward or backing up when you was shootin?" Riser replied, "I was just standing there." Riser had learned that gunshot residue had been detected on his shirt and hoodie and that defendant's DNA was found on the rifle. Riser suggested it happened when defendant "was loading it up that night" and explained, "You was touching that shit," referring to "[t]he piece that you put the back of the shells at." Defendant said he had used a napkin and not his bare hands. He did not know that a .22-caliber rifle would eject gunpowder close to the shooter.
In August 2020, defendant filed a petition for resentencing pursuant to section 1170.95. On a preprinted form defendant checked boxes to allege the following: that defendant had been convicted of first or second degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine; that he could not now be convicted of murder because of changes to sections 188 and 189; that he was not the actual killer, did not with the intent to kill or aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree; that he was not a major participant in the felony or act with reckless indifference to human life during the course of the crime or felony; and that the victim was not a peace officer in the performance of his or her duties.
The trial court appointed counsel to represent defendant. The prosecution filed opposition to the petition. On February 9, 2021, the trial court held a hearing with counsel regarding defendant's petition as well as the petition of codefendant Spry. After defendant's counsel requested an indicated ruling, the trial court stated that it was inclined to deny the petition because defendant was not prosecuted under the felony-murder rule, no natural and probable consequences instruction was given at trial, and defendant was convicted as a direct aider and abettor. A hearing was set to allow both defense attorneys to submit replies to the prosecutor's opposition. On June 23, 2021, the trial court denied the petition without issuing an order to show cause.
No reply appears in the record before us.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant contends that the trial court erred in denying his petition at the prima facie stage of the proceedings.
Effective January 1, 2019, the Legislature amended the laws pertaining to felony murder or 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).)" (People v. Gentile (2020) 10 Cal.5th 830, 842.) The Legislature also added section 1170.95, to give defendants previously convicted of murder under those theories a procedure to retroactively seek vacatur and resentencing if they could not be convicted under the amended laws. (Id. at p. 843.) A petition for relief must aver: (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); accord, People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)
Once a petition is filed alleging the statutory requirements, the court is required to proceed as set forth in section 1170.95, subdivision (c). (Lewis, supra, 11 Cal.5th at p. 960; see § 1170.95, subds. (b) & (c).) The trial court must appoint counsel for defendant and entertain briefing from both sides. (See Lewis, supra, at p. 964.) At that point the trial court determines whether defendant has made a prima facie showing of eligibility under the statute. If defendant is successful, the court must then issue an order to show cause and schedule a hearing at which the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is ineligible for section 1170.95 relief. (§ 1170.95, subd. (d)(1) & (3).)
Here, the trial court followed the procedure required by section 1170.95, subdivision (c). The court appointed counsel received a response from the prosecution, gave defendant the opportunity to submit briefing, and set a prima facie hearing. Defendant asserts that the trial court then improperly engaged in factfinding at that hearing.
While we agree that weighing the evidence and factfinding are impermissible at the prima facie stage (see Lewis, supra, 11 Cal.5th at pp. 970-972), we reject defendant's argument that the court should have looked only to the allegations of the petition to find a prima facie showing of eligibility. Although the trial court may not engage in factfinding, weigh the evidence, or exercise its discretion in determining whether the defendant has made a prima facie showing, the court may consider the record of conviction, including the court's own documents and any appellate opinion, in order to distinguish petitions with potential merit from those that are not. (Ibid.) If the record of conviction contains established facts refuting the truth of the petition's allegations, the court may find no prima facie showing has been made and deny the petition without issuing an order to show cause. (Id. at pp. 970-971.)
The jury instructions given at trial, along with other documents such as the information, verdict forms, and closing arguments are part of the record of conviction. (People v. Jenkins (2021) 70 Cal.App.5th 924, 935.) Where no jury instructions regarding felony murder or murder under the natural and probable consequences were given, a petitioner "is not '[a] person convicted of felony murder or murder under a natural and probable consequences theory,' and he is therefore ineligible for relief as a matter of law." (People v. Daniel (2020) 57 Cal.App.5th 666, 677; see § 1170.95, subd. (a).)
The prosecution has shown that no such instructions were given at defendant's trial. We have judicially noticed and reviewed the jury instructions given at defendant's 2012 trial.
The trial court explained its action as follows: ". . . I did the trial [and defendant] was not prosecuted for felony murder. The natural and probable consequences instruction was not given to the jury. [Defendant] was convicted as a direct aider and abettor." As there were no instructions given in defendant's trial regarding felony murder or murder under the natural and probable consequences doctrine, defendant was ineligible for relief under section 1170.95 as a matter of law. Thus the trial court did not err in denying the petition without issuing an order to show cause. (See People v. Daniel, supra, 57 Cal.App.5th at pp. 677-678.) It is therefore defendant's burden to show a reasonable probability that the petition would not have been summarily denied without an evidentiary hearing. (Id. at p. 676.)
Defendant has not met this burden. He does not contend that instructions were given regarding felony murder or murder under the natural and probable consequences doctrine, nor does he contend that it was improper to review the record of conviction at the prima facie stage. Indeed, he concedes that "it was correct for the trial court to rely on the record of conviction, including this court's prior opinion, when determining whether appellant was ineligible for relief as a matter of law." Defendant's quarrel is with the second half of the trial court's explanation for its ruling when the court stated: "[Defendant] accompanied Riser [and] loaded the rifle before the shooting. [His] DNA was found on the rifle. [Defendant] admitted he was wearing gloves during the shooting, and he admitted also of disposing of them after the shooting. And he said that [he] wanted to shoot rival gang members. [¶] [Defendant] was properly convicted as a direct aider and abettor."
Defendant argues that the trial court engaged in its own analysis of the evidence to conclude in essence, that he was "an active participant" in the crime. "Our task is to review the trial court's ruling, not its reasoning." (People v. Turner (2020) 10 Cal.5th 786, 807.) We "generally affirm a trial court's ruling if correct on any ground, even if the court's reasoning was incorrect." (People v. Mancilla (2021) 67 Cal.App.5th 854, 867, fn. 4.) Here the trial court's reasoning does not justify reversal, as we have determined that the ruling was correct.
DISPOSITION
The order denying the section 1170.95 petition is affirmed.
We concur: LUI, P. J., ASHMANN-GERST, J.