Opinion
B329874
04-19-2024
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR DUANE JACKSON, Defendant and Appellant.
John L. Staley, 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, Senior Assistant Attorney General, Kenneth C. Byrne and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. NA020015 Laura Laesecke, Judge. Reversed and remanded with directions.
John L. Staley, 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, Senior Assistant Attorney General, Kenneth C. Byrne and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
RAPHAEL, J. [*]
INTRODUCTION
Arthur Duane Jackson appeals from an order summarily denying his petition for resentencing under Penal Code section 1172.6. Jackson contends the superior court was required to issue an order to show cause because his petition established a prima facie case for relief under section 1172.6. The People concede the superior court erred in summarily denying Jackson's petition because the record of conviction does not establish Jackson is ineligible for relief under section 1172.6 as a matter of law. We agree with the parties and remand the case with directions for the superior court to vacate its order denying the petition, issue an order to show cause, and conduct further proceedings in accordance with section 1172.6, subdivision (d).
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Conviction and Direct Appeal
In 1994 a jury convicted Jackson and codefendant John Holani of attempted murder (§ 664; § 187, subd. (a)) and carjacking (§ 215, subd. (a)). The jury also found true allegations that each defendant's attempted murder was willful, deliberate, and premeditated (§ 664, subd. (a)); that each defendant personally used a firearm when committing the offenses (§ 12022.5, subd. (a)); that Holani inflicted great bodily injury in committing the offenses (§ 12022.7, subd. (a)); and that Jackson had a prior serious felony conviction for residential burglary (§ 667, subd. (a)). The superior court sentenced Jackson to a term of life imprisonment with the possibility of parole.
In Jackson's direct appeal, this court corrected the minimum parole eligibility period but otherwise affirmed his judgment of conviction. (People v. Jackson (1996) 46 Cal.App.4th 232, review granted Mar. 28, 1996, S051863, review dism. and cause remanded Oct. 23, 1996.) As we described in our opinion, Jackson and Holani both displayed firearms when robbing a tow truck driver who had been called to tow their disabled car; and it was Holani who ordered the driver out of the car and then shot him in the back as he lay on the ground.
We describe facts from our opinion in Jackson's direct appeal to provide background and context for the parties' arguments. We do not use these facts to determine if Jackson made a prima facie showing. (See People v. Flores (2022) 76 Cal.App.5th 974, 988; People v. Clements (2022) 75 Cal.App.5th 276, 292.).
B. The Resentencing Petition
In 2019 Jackson filed a petition for resentencing under former section 1170.95 (now section 1172.6). The superior court denied the petition without appointing counsel, holding the statute did not apply to attempted murder. This court affirmed. (People v. Jackson (July 24, 2020, B296340) [nonpub. opn.].) Thereafter, the Supreme Court granted Jackson's petition for review and transferred the case to this court with directions to vacate the prior decision and reconsider Jackson's appeal in light of Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775) and People v. Lewis (2021) 11 Cal.5th 952. We reversed the order denying Jackson's petition and directed the superior court to appoint counsel and proceed in accordance with section 1172.6, subdivision (c). (People v. Jackson (Mar. 2, 2022, B296340) [nonpub. opn.].)
In 2022 the superior court appointed counsel after Jackson, representing himself, filed a declaration in support of his petition for resentencing under Senate Bill 775. In their opposition, the People acknowledged the jury was instructed on the natural and probable consequences doctrine, but argued Jackson was still ineligible for relief because the jury found him guilty of attempted premeditated murder with personal use of a firearm. Jackson, through counsel, filed a reply in which he argued he made a prima facie showing for relief under section 1172.6.
The superior court denied Jackson's petition without issuing an order to show cause. The court emphasized that the jury found Jackson "used a gun" to commit attempted murder with premeditation, "which by definition, requires the express intent to kill." The court later issued a minute order explaining it denied the petition because, "[b]ased on the charges for which he was convicted, the Defendant had a specific intent to kill."
Jackson timely appealed.
DISCUSSION
A. Senate Bill No. 1437 and Section 1172.6
Effective 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Reyes (2023) 14 Cal.5th 981, 984; People v. Gentile (2020) 10 Cal.5th 830, 842-843) and significantly narrowed the scope of the felony-murder rule (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Curiel (2023) 15 Cal.5th 433, 448-449; People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis, supra, 11 Cal.5th at p. 957). Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule in section 189, subdivision (e). The latter provision now requires the People to prove that the defendant was the actual killer (§ 189, subd. (e)(1)); an aider and abettor to murder who had the intent to kill (§ 189, subd. (e)(2)); or a major participant in an underlying felony listed in section 189, subdivision (a), who acted with reckless indifference to human life as described in subdivision (d) of section 190.2. (§ 189, subd. (e)(3); see Curiel, at p. 448; People v. Wilson (2023) 14 Cal.5th 839, 868-869; Strong, at p. 708; Gentile, at pp. 842-843.)
With these changes, the Legislature also provided a procedure (codified in section 1172.6) for "[a] person convicted of felony murder or 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, attempted murder under the natural and probable consequences doctrine, or manslaughter" to petition the superior court to vacate the conviction and be resentenced on any remaining counts if he or she could not now be convicted of murder, attempted murder, or manslaughter because of the changes to sections 188 and 189. (§ 1172.6, subd. (a); see Sen. Bill No. 775 (2021-2022 Reg. Sess.) [extending Senate Bill 1437's ameliorative changes and procedure for potential relief to individuals convicted of attempted murder or manslaughter].)
If a section 1172.6 petition contains all the required information, the sentencing court must appoint counsel to represent the petitioner if requested. (§ 1172.6, subd. (b)(1)(A), (b)(3); see also People v. Lewis, supra, 11 Cal.5th at pp. 962-963.) The prosecutor must then file a response to the petition, the petitioner may file a reply, and the court must hold a hearing to determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subd. (c).) If such a showing is made, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c) &(d)(1).)
In deciding whether a petitioner has made a prima facie showing for relief under section 1172.6, "'"the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."'" (People v. Lewis, supra, 11 Cal.5th at p. 971; see People v. Curiel, supra, 15 Cal.5th at p. 460.) The court may consider the record of conviction, which will "necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, at p. 971; see Curiel, at pp. 463-464.) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, at p. 972; see People v. Eynon (2021) 68 Cal.App.5th 967, 975.)
"Nevertheless, the court may appropriately deny a petition at the prima facie stage if the petitioner is ineligible for relief as a matter of law. '"[I]f the record, including the court's own documents, 'contain[s] facts refuting the allegations made in the petition,' then 'the court is justified in making a credibility determination adverse to the petitioner,'"' thereby deeming the petitioner ineligible." (People v. Harden (2022) 81 Cal.App.5th 45, 52.) "We review de novo whether the trial court conducted a proper inquiry under section 1172.6, subdivision (c)." (People v. Williams (2022) 86 Cal.App.5th 1244, 1251.)
B. The Superior Court Erred in Denying Jackson's Petition Without Issuing an Order To Show Cause
Jackson argues the superior court erred in determining he was ineligible for relief under section 1172.6 as a matter of law. He contends, and the People concede, that the record of conviction does not refute Jackson's prima facie case that he could have been convicted of attempted murder under the natural and probable consequences doctrine. We agree.
1. Jackson made a prima facie case for relief
Jackson made a prima facie showing of eligibility for relief under section 1172.6. He averred in his petition for resentencing that he was convicted at trial of attempted murder under the natural and probable consequences doctrine or felony-murder rule, and that he could not now be convicted of attempted murder because of the changes to sections 188 and 189. (See § 1172.6, subd. (a)(1)-(3).) We accept these allegations as true, unless the record of conviction establishes Jackson is ineligible for relief as a matter of law. (People v. Curiel, supra, 15 Cal.5th at p. 460; People v. Lewis, supra, 11 Cal.5th at p. 971.)
2. The attempted murder conviction does not establish that Jackson is ineligible for relief as a matter of law
Under the natural and probable consequences doctrine, "a defendant who aids and abets a confederate in committing a crime (the target offense) is liable for other crimes committed by the confederate if those further [nontarget] crimes were natural and probable consequences of the target offense." (People v. Eynon, supra, 68 Cal.App.5th at p. 973; accord, People v. Smith (2014) 60 Cal.4th 603, 611.) The aider and abettor's liability under the doctrine for any nontarget offense is vicarious. (See People v. Chiu (2014) 59 Cal.4th 155, 164.) "'Because the nontarget offense is unintended [by the aider and abettor], the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime.'" (Id. at p. 164.)
At the time of Jackson's trial, a defendant could be convicted of attempted premeditated murder if the jury found he aided and abetted a target offense for which attempted murder was a natural and probable consequence, and the perpetrator of the attempted murder acted with premeditation. (See People v. Favor (2012) 54 Cal.4th 868, 879-880; see also People v. Montes (2021) 71 Cal.App.5th 1001, 1007 ["When appellant was found guilty of attempted murder under a natural and probable consequences theory of liability, the 'intent to kill' was imputed onto appellant from the actual killer or perpetrator"].) Section 188, subdivision (a)(3), now prohibits this theory of liability because a fact finder cannot impute malice based solely on a defendant's participation in a crime. (See People v. Sanchez (2022) 75 Cal.App.5th 191, 196 ["Because section 188, subdivision (a)(3), prohibits imputing malice based solely on participation in a crime, the natural and probable consequences doctrine cannot prove an accomplice committed attempted murder"].) Moreover, anyone who has been convicted of attempted premeditated murder under the natural and probable consequences doctrine may now seek resentencing relief under section 1172.6. (§ 1172.6, subd. (a); see also Montes, at pp. 10071008.)
Here, the record shows the superior court instructed the jury on the natural and probable consequences doctrine using CALJIC No. 3.02. (See People v. Harden, supra, 81 Cal.App.5th at p. 50 [jury instructions are part of the record of conviction that may be reviewed to make a prima facie determination].) Specifically, the court instructed the jury that it could find Jackson guilty of attempted murder if it determined he aided and abetted in the commission of carjacking and a co-principal committed attempted murder as a natural and probable consequence of that carjacking. The court also instructed the jury with CALJIC No. 8.67 that if it found either defendant committed attempted murder, it must then determine whether the attempted murder was premeditated. The jury instruction did not require a finding that both defendants acted with premeditation. Instead, the instruction imposed that requirement only on the "would-be slayer." With these instructions, the jury could have found Jackson guilty of attempted murder based on imputed malice. This remains true notwithstanding the jury's finding that Jackson committed attempted murder with premeditation. (See People v. Favor, supra, 54 Cal.4th at pp. 879-880 ["Because section 664(a) 'requires only that the attempted murder itself was willful, deliberate, and premeditated' [citation], it is only necessary that the attempted murder 'be committed by one of the perpetrators with the requisite state of mind'"].) While the superior court also instructed the jury on direct liability (CALJIC No. 8.66) and direct aider and abettor liability (CALJIC No. 3.01) for purposes of Jackson's attempted murder charge, the record does not confirm the jury's decision was based on one of these still valid theories of liability.
3. The firearm enhancement does not establish that Jackson is ineligible for relief
The jury's finding that Jackson "personally used a firearm" in the commission of attempted murder also does not refute his prima facie showing as a matter of law. A true finding on this enhancement does "not in itself prove [a] defendant was the actual killer" or perpetrator of attempted murder. (People v. Jones (2003) 30 Cal.4th 1084, 1120.) For instance, "[i]f two robbers display guns to intimidate robbery victims and one shoots and kills a victim, both robbers could be found to have personally used a gun in the robbery and the felony murder, even though only one is the actual killer." (Ibid.; see also People v. Granado (1996) 49 Cal.App.4th 317, 325 ["if the defendant is found on substantial evidence to have displayed a firearm in order to facilitate the commission of an underlying crime, a use of the gun has occurred both as a matter of plain English and of carrying out the intent of [section] 12022.5[, subdivision] (a)"].) Here, the superior court instructed the jury with CALJIC No. 17.19 that, for purposes of the enhancement, the term "used a firearm" meant "to display a firearm in a menacing manner, intentionally to fire it, or intentionally to strike or hit a human being with it." In other words, the jury could have found Jackson personally used a firearm based on Jackson displaying the firearm in a menacing manner alone.
We thus agree with the parties that the record of conviction does not demonstrate Jackson was ineligible for resentencing under section 1172.6 as a matter of law. Because Jackson met his prima facia burden under the statute, the superior court erred by not issuing an order to show cause and setting the matter for an evidentiary hearing.
DISPOSITION
The order denying Jackson's petition for resentencing is reversed. On remand, the superior court is directed to vacate its order denying the petition, issue an order to show cause, and conduct further proceedings in accordance with section 1172.6, subdivision (d).
We concur: SEGAL, Acting P. J., FEUER, J.
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.