Opinion
A156578
10-15-2019
THE PEOPLE, Plaintiff and Respondent, v. DIMARIO PICKFORD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 156578)
Appellant Dimario Pickford appeals from the trial court's order of February 1, 2019 summarily denying his petition to recall and vacate his conviction of first degree murder and for resentencing based on recently enacted Penal Code section 1170.95. Appellant's court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for review. Appellant was informed of his right to file supplemental briefing, and he has done so. After our review of counsel's brief and appellant's brief and our independent review of the record, we find no errors or other issues requiring further briefing, and we affirm.
All statutory references are to the Penal Code. --------
Underlying Judgment of Conviction
The facts and procedural history of this case are set forth in our opinion affirming the appellant's judgment of conviction (People v. Pickford (March 28, 2012, A130297) [nonpub. opn.] (Pickford).) We summarize briefly here, because the underlying facts are not at issue.
As we wrote, "A jury convicted Dimario Pickford (appellant) of murder (. . . § 187) and possession of an assault weapon (§ 12280, subd. (b)). The jury also found true an allegation that appellant personally used a firearm to commit murder (§ 12022.7, subd. (a)).) Appellant was sentenced to a term of 50 years and eight months to life in prison. The sole issue on appeal is whether the evidence supports the jury's finding that the murder was premeditated. We hold that the premeditation finding is supported by substantial evidence and, therefore, affirm the judgment." (Pickford, supra, 2012 WL 1032553 at p. *1, fn. omitted.)
The victim, Desmond Thomas, was gunned down shortly after midnight on October 18, 2008, on Seminary Avenue just north of Hayes Street in East Oakland. Seven gunshots were fired within less than three seconds. When officers arrived at the scene five minutes later, Thomas was on the ground with multiple gunshot wounds to his chest. He was conscious and talking but did not know who shot him. A woman who was with Thomas told police that she heard shots, but she did not see the shooter. Thomas later died at the hospital of his injuries. (Pickford, supra, 2012 WL 1032553 at p.*1.)
Two witnesses separately identified appellant as the shooter. Tameca Jessie, who knew both the victim and appellant, admitted that she saw appellant shoot at Thomas five or six times when she pulled up her car in front of the store near where the victim was shot. (Pickford, supra, 2012 WL 1032553 at p. *2.) Jessie knew about a "beef" between appellant and Thomas over a woman. Appellant was in love with the woman, but Thomas was " 'messing around' " with her. (Ibid.) Jessie had seen defendant with a .45 and with a " 'chopper.' " (Ibid.)
Jessie feared for her family's safety and especially for her son, who knew appellant. (Pickford, supra, 2012 WL 1032553 at p. *2.) Appellant threatened Jessie and her son after Jessie talked to the police. As we wrote in our opinion, Jessie told the police that appellant "had threatened her, that he said that he knew the police had come to her house, and he claimed other people were saying that her son had told the police that [appellant] was the shooter. Jessie said that [appellant] advised her that it would be best for her and her son to leave town, and that he turned the light on in his car and he was holding the same gun that he had with him when he came to her house weeks earlier and told her that he was 'always strapped.' " (Pickford, supra, 2012 WL 1032553 at p. *3.)
Another witness, Darrell Richardson, was friends with appellant from childhood. As we wrote in our opinion, for about 10 years "they hung out in a group together in the area of Seminary and Hayes. Richardson was aware that there was 'bad blood' between appellant and Desmond Thomas because appellant used to talk to him about their problems. At the time of trial, Richardson could not recall 'the whole reason why' appellant disliked Thomas, but he testified that they had petty problems and they may have fought over a dice game or something.
"A few days before Thomas was shot, Richardson hung out with appellant and a group of friends outside the store on Hayes and Seminary, where the group often hung out together. Thomas happened to drive by and appellant told Richardson that he would have started shooting at Thomas if the group had not been with him. Appellant was armed when he made this statement and he pulled out his gun, which was a .40 or .45 caliber pistol, and showed it to Richardson. He said that the reason he did not shoot at Thomas was because he did not want to accidentally hit one of the friends who was in front of the store.
"A few days after Thomas was shot, after Richardson had already heard about the shooting, appellant called Richardson and admitted that he shot and killed Thomas." (Pickford, supra, 2012 WL 1032553 at p.*4.)
Petition for Resentencing
Section 1170.95 became effective on January 1, 2019, as part of Senate Bill 1437. "The legislation . . . addresses certain aspects of California law regarding felony murder and the natural probable consequences doctrine by amending section 188 and 189, as well as by adding section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions . . . . [¶] Senate Bill 1437 was enacted to 'amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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).) Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds . . . section 1170.95, which allows those 'convicted of felony murder or murder under a natural and probable consequence theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . .' (§ 1170.95, subd. (a).)" People v. Martinez (2019) 31 Cal.App.5th 719, 722-723.)
Section 1170.95 permits a person to file a petition if all three of these conditions are met: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] (3) The petitioner 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, subd. (a).)
As a first step, the court "shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section." (§ 1170.95, subd. (c).)
On January 31, 2019, appellant filed a pro se "Petition for Resentencing under Penal Code section 1170.95." The trial court succinctly framed the issue in its five-page order denying the petition: Appellant "argues [he] is eligible for resentencing under section 1170.95 because he can 'no longer [be] convicted of first degree murder under the natural and probable consequences doctrine.' That may be true, but petitioner was convicted of first degree premeditated murder. As explained below, he is not eligible for resentencing as a matter of law. (. . . § 1170.95, subd. (c).) The petition must be denied." (Fn. omitted.)
The trial court reviewed the petition and its attachments and took judicial notice of our opinion affirming the convictions (described above) and its own records. The trial court wrote:
"Petitioner claims he is entitled to resentencing because his conviction rests on the natural and probable consequences doctrine. To that end, he quotes the jury instructions on actual and implied malice and highlights those sections using the phrase 'natural and probable consequences.' Petitioner's confusion is understandable but his reliance is misplaced . . . .
"Here, the trial court [at appellant's trial] instructed on first and second degree murder among other instructions. As petitioner notes, the trial court instructed on express and implied malice and, in so doing, used the term 'natural and probable consequences.' Petitioner argues this is proof that his conviction was based on the natural and probable consequences doctrine and entitles him to relief. Petitioner's confusion is understandable but his reliance is misplaced as the petition overlooks one small yet critical sentence from the instructions. When instructing on the degrees of murder, the trial court told the jury (as it was required to) the theory of first degree murder: 'The defendant has been prosecuted for first degree murder under the theory that the murder was willful, deliberate and premediated.'
"Given the choice between first degree premeditated murder and second degree murder, the jury chose the former and necessarily rejected the latter. 'If it is shown that the killing resulted from an intentional act with express or implied malice, as defined by subdivision (a), no other mental state need be shown to establish the mental state of malice aforethought.' (§ 188, subd. (b) [emphasis added].) The jury's true finding that petitioner personally and intentionally used a firearm to murder resolves any remaining doubts about whether the jury found the killing resulted from an 'intentional act with express or implied malice'. (§§ 188, subd. (b); 12022.7, subd. (a); 12022.53, subds. (b)-(d).)
"Having been convicted of first degree premeditated murder, his conviction rests on a valid theory of murder that survives changes made by SB 1437 to . . . sections 188 and 189. (§ 1170.95, subd. (a)(3).) The petition is therefore DENIED as petitioner is therefore ineligible for resentencing under section 1170.95 as a matter of law. (§ 1170.95, subd. (c).)"
We have reviewed the record on appeal for any arguable issues. We conclude there are no arguable issues within the meaning of People v. Wende, supra, 25 Cal.3d 436. The order is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.