Opinion
B334949
06-10-2024
THE PEOPLE, Plaintiff and Respondent, v. MARCELL JONES, Defendant and Appellant.
Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. TA072443, Teresa P. Magno, Judge. Affirmed.
Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Marcell Jones filed in the superior court a petition for resentencing pursuant to Penal Code section 1172.6. The court denied the petition without an evidentiary hearing on the ground that Jones failed to make a prima facie showing for relief. Jones appealed.
All subsequent statutory references are to the Penal Code.
Jones's appointed appellate counsel filed a brief identifying no issues on appeal and requesting that we follow the procedures outlined in People v. Delgadillo (2022) 14 Cal.5th 216, 232 (Delgadillo). Jones filed a supplemental brief in which he makes several contentions, which we address below. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In January 2005, a jury convicted Jones of premeditated attempted murder of Daniel L. (§§ 187, 664), and found true allegations that Jones personally and intentionally discharged a firearm causing great bodily injury to the victim. (§ 12022.53, subds. (b)-(d).) The jury further found that he committed the offense 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. (§ 186.22, subd. (b).) The court sentenced Jones to life plus 25 years to life for the firearm enhancement and 10 years for the gang enhancement. Jones appealed. We modified the sentence by striking the 10-year sentence on the gang enhancement, and otherwise affirmed the judgment. (People v. Jones (Dec. 22, 2005, B180799) [nonpub. opn.].)
In April 2023, Jones filed a petition for resentencing under section 1172.6. The petition is supported in part by a declaration by Charles A. Mosley, who states that he provided a ride in his car to a man with the first name Jamar and whom Mosely knew as Dolla. Mosely did not know the man's last name. Shortly after dropping Jamar off at his destination, a shooting took place in the area. A witness informed police that the shooter had entered Mosely's vehicle shortly before the shooting. Mosely thus believed that Jamar was the shooter. Jones, he concludes, "was not the man" he had picked up that day and "is not the man responsible for the attempted murder of Daniel [L.]"
In support of its opposition to the petition, the People submitted the complete set of jury instructions given in Jones's trial and the jury's verdict. The instructions reveal that the jury was not instructed on the natural and probable consequences doctrine or other theory of imputed liability.
The court held a hearing on the question whether Jones had made a prima facie showing for relief. After reviewing the record of conviction, including the jury instructions and the verdict, the court determined that Jones is ineligible for relief under section 1172.6. The court explained that Jones's jury had not been instructed on the natural and probable consequences doctrine or aiding and abetting, and that he had been "charged, prosecuted, and convicted as the sole and actual shooter who acted with the intent to kill." The court further noted that a conviction for premeditated attempted murder required the jury to find that Jones had the intent to kill when he committed the crime.
Jones timely appealed and we appointed counsel to represent him. Counsel filed a brief raising no arguable issues and requesting that we follow the procedures set forth in Delgadillo. Counsel informed Jones of his intention to file the Delgadillo brief. Counsel further informed Jones of his right to file a supplemental brief and that this court will dismiss his appeal if he does not file one. This court also informed Jones of his right to submit a supplemental brief. Jones thereafter timely filed a supplemental brief.
We are satisfied that counsel has complied with his obligations under Delgadillo.
DISCUSSION
Under Delgadillo, when appointed counsel files a brief in an appeal from the denial of a section 1172.6 petition and identifies no issues on appeal, the Court of Appeal is not required to conduct an independent review of the record to identify arguable issues, even when the defendant files a supplemental brief. (Delgadillo, supra, 14 Cal.5th at p. 232.) The reviewing court, however, has discretion to conduct such a review. (Ibid.) Cognizant of our discretion, we decline to conduct an independent review in this case.
If the appellant files a supplemental brief in a case governed by Delgadillo, we are "required to evaluate the specific arguments presented in [the defendant's supplemental] brief." (Delgadillo, supra, 14 Cal.5th at p. 232.) We now turn to those arguments.
A. Sufficiency of the Evidence Supporting Jones's Conviction
Jones contends that the evidence submitted at his trial was insufficient to support a finding that he was a "primary participant" in the crime. More particularly, he argues: (1) there was no evidence that anyone saw the shooting; (2) there was no evidence that anyone saw Jones with a gun; (3) there was no evidence that anyone "saw actions consistent with a shooting stance or shooting motions"; (4) testimony by two witnesses that Jones was the shooter was based on inadmissible speculation; (5) evidence of multiple weapons reasonably suggests the presence of multiple individuals at the scene; and (6) statements by witnesses initially described the shooter as someone shorter and with more hair than Jones.
These are not cognizable issues in the determination of a petition filed under section 1172.6. As the court in People v. Farfan (2021) 71 Cal.App.5th 942 (Farfan) stated: "The mere filing of a section [1172.6] petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings. To the contrary, '[n]othing in the language of section [1172.6] suggests it was intended to provide redress for allegedly erroneous prior factfinding. . . . The purpose of section [1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.'" (Farfan, supra, at p. 947; accord, People v. Burns (2023) 95 Cal.App.5th 862, 865 (Burns) ["[s]ection 1172.6 does not create a right to a second appeal, and [the defendant] cannot use it to resurrect a claim that should have been raised in his . . . direct appeal"]; People v. Flores (2023) 96 Cal.App.5th 1164, 1173 [same].)
B. Alternate Theories
Jones identifies the following "alternate theories" of the crime (capitalization omitted): (1) Jones was a target of the shooting; (2) he was an "additional victim of the shooting" (capitalization omitted); (3) he was a witness to the shooting; and (4) self-defense. It is not clear from Jones's brief whether these theories were presented to the jury and Jones is arguing that the jury should not have rejected them, or that Jones is implying that his counsel failed to assert these theories and was deficient for failing to do so. In either case, the arguments are not pertinent to Jones's section 1172.6 petition.
The existence of Jones's alternate factual theories- whether asserted or not-does not have any bearing on the question whether Jones "could not presently be convicted of . . . attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).)
Significantly, Jones does not contend that the jury might have convicted him based on the natural and probable consequences doctrine. Indeed, the jury instructions the prosecution submitted in opposition to Jones's petition show that the jury was not instructed on that doctrine. Section 1172.6, however, "applies by its terms only to attempted murders based on the natural and probable consequences doctrine." (People v. Coley (2022) 77 Cal.App.5th 539, 548.) In the absence of such instructions, Jones was not eligible for relief under section 1172.6. (People v. Lovejoy (2024) 101 Cal.App.5th 860, 865; Coley, supra, 77 Cal.App.5th at p. 548.)
C. Arguments at Trial Lessened the Prosecutor's Burden of Proof
Jones next contends that an issue at his trial was whether he was present at the scene of the crime. That dispute, he argues, "lessened the prosecution's burden to prove beyond a reasonable doubt that [he] actually committed the 'crime' . . . or played a primary role in its commission." The argument lacks merit for the same reason his sufficiency of the evidence arguments fail: Jones cannot use section 1172.6 to assert an argument "that should have been raised in his . . . direct appeal." (Burns, supra, 95 Cal.App.5th at p. 865.)
D. The Mosely Declaration and Factual Innocence
Jones further contends that the declaration by Mosely "actually and factually clears [him]." A petition under section 1172.6 is not an appropriate vehicle to seek relief based on new evidence establishing factual innocence. Section 1172.6 applies when the defendant could not presently be convicted of attempted murder "because of changes" to the law of murder. (§ 1172.6, subd. (a)(3), italics added.) Even if the Mosely declaration supports a claim that Jones is actually innocent of the crime, the challenge to his conviction would not be "because of changes" to the law of murder (ibid.); rather, relief would be based on the fact that he did not commit the crime at all, regardless of the changes in the law of murder.
Claims of actual innocence based on new evidence are properly raised by petition for writ of habeas corpus. (See In re Clark (1993) 5 Cal.4th 750, 796; People v. Gonzalez (1990) 51 Cal.3d 1179, 1246.) Jones, we note, made his assertion of actual innocence based on the Mosely declaration in a habeas petition filed in this court in 2017-a claim we summarily denied. (In re Jones (Sept. 27, 2017, B283785).)
E. The Prosecution's Withholding of Exculpatory Evidence and Reliance on False Evidence
Lastly, Jones argues that the "prosecution withheld exculpatory weapons evidence key to determining primary participants." He described the withheld evidence as: (1) information that "led to the pursuit of 'an unknown revolver' "; (2) the absence of "ballistic testing in any capacity"; (3) the absence of "trajectory testing to factually determine where the shots came from"; and (4) the absence of "GSR/powder burn testing on [the] victim's hands to exclude him as a potential suspect and perp[e]trator." In addition, Jones contends that, in the absence of the" 'unknown revolver' . . . the people knowing[ly] relied on the 9mm casings as evidence of the weapon used to commit the crime." The prosecution, he concludes, thus "knowingly relied on false evidence to secure a conviction." These arguments fail because, as discussed above, section 1172.6 does not provide relief for trial error (Farfan, supra, 71 Cal.App.5th at p. 947), and Jones cannot use the procedure "to resurrect a claim that should have been raised in his . . . direct appeal" (Burns, supra, 95 Cal.App.5th at p. 865).
DISPOSITION
The order denying Jones's petition for resentencing under section 1172.6 is affirmed.
We concur: CHANEY, J., BENDIX, J.