Opinion
B307416
04-12-2021
THE PEOPLE, Plaintiff and Respondent, v. MILTON RICARDO JONES, Defendant and Appellant.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA098926) APPEAL from a judgment of the Superior Court of Los Angeles County, John J. Lonergan, Jr., Judge. Affirmed. John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
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Milton Ricardo Jones, convicted of second degree murder in 2009 with a true finding he had personally and intentionally discharged a firearm causing death, appeals from a postjudgment order denying his motions for resentencing pursuant to Penal Code section 1170.95, to dismiss the firearm enhancement imposed pursuant to section 12022.53, subdivision (d), in light of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2) (Senate Bill 620), effective January 1, 2018, and for release from prison because of the COVID-19 pandemic. No arguable issues have been identified following review of the record by Jones's appointed appellate counsel. We also have identified no arguable issues after our own independent review of the record and analysis of the contentions presented by Jones in his supplemental brief. We affirm.
Statutory references are to this code.
Jones also asked the court to set a hearing to make a record of youth-related mitigating information as authorized by the Supreme Court in People v. Franklin (2016) 63 Cal.4th 261. The court granted that request and scheduled a Franklin hearing for November 12, 2020. Jones, who was 23 years old at the time of the controlling offense, will be eligible for release on parole at a youth offender parole hearing during his 25th year of incarceration. (§ 3051, subd. (b)(3).)
FACTUAL AND PROCEDURAL BACKGROUND
1. Jones's Conviction and Sentence
Our opinion affirming Jones's second degree murder conviction (People v. Britt (June 6, 2011, B218965) [nonpub. opn.]) describes in detail the evidence presented at trial, which formed the basis for the superior court's decision denying Jones's motion for resentencing. In brief, in July 2008 Deshon Britt confronted Aaron Patterson, who was walking with two companions outside a liquor store, with the gang challenge, "Where are you from?" Patterson responded, "8 Trey Gangster Crip." Britt replied, "99 Watts Mafia Crip," a rival gang, and went into the liquor store to get Jones, his fellow gang member. Outside the store, Jones and Patterson first argued and then fought. After Patterson knocked Jones to the ground, Jones pulled out a gun and shot Patterson in the back of the head as Patterson tried to run away. Patterson died from the gunshot.
Jones and Britt were jointly tried before separate juries. Jones's jury found him guilty of second degree murder and found true firearm and criminal street gang enhancements. The court sentenced him to an aggregate indeterminate state prison term of 40 years to life: 15 years to life for second degree murder (§ 190, subd. (a)), plus a consecutive term of 25 years to life for personally and intentionally discharging a firearm causing death (§12022.53, subd. (d)). We affirmed Jones's conviction on appeal, rejecting his arguments asserting evidentiary and instructional error. (People v. Britt, supra, B218965.)
Britt's jury convicted him of first degree murder as an aider and abettor and also found true related firearm and gang enhancements. He was sentenced to an indeterminate state prison term of 50 years to life. We affirmed Britt's conviction along with Jones's (People v. Britt, supra, B218965) and last year affirmed the superior court's summary denial of Britt's petition for resentencing pursuant to section 1170.95. (People v. Britt (Feb. 18, 2020, B297588) [nonpub. opn.]), review granted May 13, 2020, S261128.)
2. Jones's Postjudgment Motion
On January 27, 2020 Jones, representing himself, filed a motion captioned, "Notice of Motion for Reduction of Sentence Under Senate Bill 1437—New Penal Code § 1170(d)(1); Strike of the Gun Enhancement Pursuant to Senate Bill 620 and to a Youth Offender Hearing Pursuant to Assembly Bill 1308." Jones's 14-paged typed memorandum in support of his motion argued, in essence, under the "new felony murder rule" and developments in the law regarding youth offenders, his sentence of 40 years to life should be reduced. In a separate motion filed in June 2020 prior to the hearing on his motion for resentencing, Jones asked to be released from prison due to the COVID-19 pandemic.
The court appointed counsel to represent Jones. The prosecutor filed an opposition to the motion for resentencing arguing Jones was ineligible for resentencing under section 1170.95 because his murder conviction was not based on the felony-murder rule or the natural and probable consequences doctrine and the record of conviction established that Jones had been the actual killer. The prosecutor also argued the court should not exercise its discretion under Senate Bill 620 to dismiss the firearm enhancement because Jones had shot and killed Patterson. The prosecutor acknowledged Jones's entitlement to a hearing under People v. Franklin (2016) 63 Cal.4th 261.
The court held a telephonic hearing on July 22, 2020. At the outset the court noted it had denied a motion by Jones to strike the section 12022.53, subdivision (d), firearm enhancement pursuant to Senate Bill 620 on June 11, 2018. At that time the court ruled Senate Bill 620 did not apply retroactively to final judgments. The court denied the renewed motion, stating, "The same ruling applies." The court then denied the motion for resentencing under section 1170.95 on the ground Jones was ineligible as the actual killer. The court denied the request for COVID-19 release without further comment and granted the motion for a Franklin hearing.
Jones filed a notice of appeal on August 28, 2020.
DISCUSSION
In accord with the procedures described in People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, we appointed counsel to represent Jones on appeal. After reviewing the record, appointed counsel filed a brief raising no issues. Appointed counsel advised Jones on February 2, 2021 that he had 30 days to submit a brief or letter raising any grounds of appeal, contentions or arguments he wanted the court to consider. We provided a similar notice to Jones on February 5, 2021. We thereafter granted Jones an extension of time to file his supplemental letter brief.
On March 30, 2021 we received an 18-page typed supplemental brief from Jones that repeats the arguments he made in the superior court regarding the amended felony-murder rule and his contention his indeterminate life sentence should be reduced in light of constitutional and statutory developments regarding youth offenders and legislative enactments modifying the elements of accomplice liability for murder and giving trial courts greater discretion at sentencing.
Jones's arguments for resentencing lack merit. Section 1170.95, enacted by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437), authorizes an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder because of Senate Bill 1437's changes to the definition of the crime. Jones was not tried or convicted under either the felony-murder rule or the natural and probable consequences doctrine. As the superior court ruled, the record of conviction unequivocally establishes that Jones was the actual killer. As such, he is ineligible for resentencing under section 1170.95 as a matter of law. (See, e.g., People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, review granted March 18, 2020, S260493.)
As for Jones's firearm enhancement, Senate Bill 620 became effective January 1, 2018, six years after Jones's judgment of conviction was final. As the court ruled in denying Jones's original motion for the court to strike the enhancement, the statutory changes made by that legislation do not apply to cases where the judgment of conviction was final before the effective date. (People v. Hernandez (2019) 34 Cal.App.5th 323, 326; People v. Johnson (2019) 32 Cal.App.5th 938, 942.)
Jones's supplemental brief does not address his separate motion concerning COVID-19. --------
Because no cognizable legal issues have been raised by Jones's appellate counsel or by Jones or identified in our independent review of the record, the order denying the postjudgment motions is affirmed. (See People v. Cole, supra, 52 Cal.App.5th at pp. 1039-1040, review granted; see also People v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.