Opinion
B325751
11-30-2023
THE PEOPLE, Plaintiff and Respondent, v. ALBERT JEROME BECKLEY, JR., Defendant and Appellant.
Robert D. Bacon, 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, Zee Rodriguez and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, No. TA094886, Allen Joseph Webster, Jr., Judge. Affirmed.
Robert D. Bacon, 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, Zee Rodriguez and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
In 2008, a jury convicted Albert Jerome Beckley, Jr. (Beckley) of one count of first degree murder and two counts of attempted murder after he shot at three victims from a moving vehicle driven by his codefendant. The trial court sentenced Beckley to 50 years to life in prison. We struck the street gang enhancement imposed in connection with Beckley's sentence, but otherwise affirmed his convictions and sentence on direct appeal. (See People v. Beckley (2010) 185 Cal.App.4th 509 (Beckley I).) We also affirmed the trial court's order denying Beckley's subsequent pro se petition challenging his first degree murder conviction, filed pursuant to Penal Code section 1172.6 (formerly section 1170.95).(See People v. Beckley (Jan. 6, 2020, B298658) [nonpub. opn.] (Beckley II).)
All subsequent statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6 (Stats. 2022, ch. 58, § 10) without changing the statute's content. We hereafter cite to section 1172.6 for ease of reference.
At the time Beckley filed his first section 1172.6 petition, the statute permitted only defendants "convicted of felony murder or murder under a natural and probable consequences theory" to seek resentencing. (Former § 1170.95, subd. (a).) In 2022, the Legislature expanded the scope of relief afforded under section 1172.6 to defendants convicted of murder based on any "other theory under which malice is imputed to a person based solely on that person's participation in a crime," as well as to defendants convicted of "attempted murder under the natural and probable consequences doctrine." (§ 1172.6, subd. (a).) On the basis of this expanded relief, Beckley filed a second section 1172.6 petition, which the trial court denied.
Beckley now asks us to reverse the order denying his second petition, urging the trial court erred in rejecting the petition without first appointing counsel. He contends further that the court denied his petition based on its allegedly erroneous determination that section 1172.6 bars successive petitions. We conclude, however, that the record demonstrates Beckley is categorically ineligible for section 1172.6 relief. As a result, the court's failure to appoint counsel was harmless, and we need not resolve whether section 1172.6 permits successive petitions. We therefore affirm.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
We summarize here only the facts and procedural history relevant to our resolution of this appeal.
A. Overview of the Crimes and Beckley's Trial
In 2008, the Los Angeles County District Attorney's Office charged Beckley and a fellow purported gang member with one count of first degree murder (§ 187, subd. (a)) and two counts of attempted premeditated murder (§§ 187, subd. (a), 664, subd. (a)) based on their alleged perpetration of a fatal drive-by shooting. The charging document also alleged criminal street gang enhancements (§ 186.22, subd. (b)(1)(C)) and personal use firearm enhancements (§ 12022.53, subds. (b)-(e)) against Beckley.
At trial, the prosecutor argued that Beckley personally fired the shots, while his codefendant aided and abetted Beckley by serving as the driver. Beckley testified on his own behalf, presenting mistaken identity and alibi defenses. Neither the prosecution nor the defense argued that Beckley was merely an indirect participant in the crimes. The trial court instructed the jury on aiding and abetting liability using CALCRIM Nos. 400 and 401, but did not instruct on the felony murder rule, the natural and probable consequences doctrine, or any other theory of liability involving imputed malice.
The jury convicted Beckley and his codefendant on all counts and found true the criminal street gang enhancements. In addition, the jury found that Beckley had "personally and intentionally discharged a firearm" in committing the offenses.
The prosecution did not allege that Beckley's codefendant personally discharged a firearm in connection with the shooting.
The trial court sentenced Beckley to 50 years to life on the first degree murder count, and to lesser concurrent sentences on the two attempted premeditated murder counts. Beckley appealed. (See Beckley I, supra, 185 Cal.App.4th 509.) We struck the gang enhancements imposed in connection with Beckley's sentence, but otherwise affirmed the judgment. (Ibid.)
B. Subsequent Changes to the Law of Murder and Attempted Murder
Approximately eight years after Beckley's first appeal, "[e]ffective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 '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.' [Citation.]" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
The bill accomplished this objective by, among other changes, amending section 188 to provide that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) The bill also amended section 189 by "limit[ing] the felony-murder rule to cases where the defendant was the actual killer, acted with an intent to kill, or acted as a 'major participant' in the underlying felony and with 'reckless indifference to human life.'" (People v. Coley (2022) 77 Cal.App.5th 539, 543 (Coley).) "In addition to substantively amending sections 188 and 189," the bill added section 1172.6, which provides a procedure whereby "convicted murderers who could not be convicted under the law as amended" may petition to have their conviction vacated and be resentenced on any remaining counts. (Lewis, supra, 11 Cal.5th at p. 959.)
Effective January 1, 2022, the Legislature enacted Senate Bill No. 775 (2021-2022 Reg. Sess.), which expanded the scope of section 1172.6's relief to defendants (1) convicted of murder based on any "other theory under which malice is imputed to a person based solely on that person's participation in a crime," and (2) convicted of "attempted murder under the natural and probable consequences doctrine." (§ 1172.6, subd. (a)(1); Coley, supra 77 Cal.App.5th at p. 548.)
If a section 1172.6 petition contains all the required information, including "[a] declaration by the petitioner that the petitioner is eligible for relief," the trial court must appoint counsel, if requested (§ 1172.6, subds. (b)(1)(A) &(b)(3)); the prosecutor must "file and serve a response" to the petition, to which the petitioner may reply (id., subd. (c)); and "[a]fter the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (Ibid.)
C. Beckley's Section 1172.6 Petitions
In March 2019-approximately two months after the Legislature enacted Senate Bill No. 1437-Beckley filed a pro se petition pursuant to section 1172.6 challenging his first degree murder conviction. Checking boxes on a preprinted form petition, Beckley attested that he "could not now be convicted of . . . murder because of changes to [sections] 188 and 189." He also requested the trial court appoint counsel to represent him in connection with the petition.
The court did not appoint counsel for Beckley, solicit a response from the prosecution, or hold a hearing. It denied the petition in a written order, explaining, "[Beckley] was the actual shooter, definitely intended to kill the victim[,] and the shooting was in furtherance of gang activity. He obviously does not come within the exception of . . . sections 188 and 189."
Beckley appealed the court's denial of his petition, and we appointed counsel to represent him. (Beckley II, supra, B298658.) His counsel filed a Wende brief raising no issues on appeal (see People v. Wende (1979) 25 Cal.3d 436), and on January 6, 2020, we affirmed the trial court's denial of Beckley's petition. (Beckley II, supra, B298658.)
After Senate Bill No. 775 took effect in 2022, Beckley filed a second section 1172.6 petition-this time challenging his attempted murder convictions, in addition to his conviction for first degree murder. Beckley attested via his form petition that the charging document "filed against [him] . . . allowed the prosecution to proceed under a theory . . . under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine." Beckley also requested the trial court appoint counsel on his behalf.
The court denied Beckley's second section 1172.6 petition without appointing counsel or requesting a written response from the prosecution. Although the record discloses the court conducted a hearing on the petition, Beckley was not present at the hearing, nor did anyone else appear on his behalf. In its written order denying the second petition, the court recited the procedural history concerning Beckley's first petition and then explained: "On June 24, 2022, [Beckley] filed another petition for resentencing [pursuant to] . . . section [1172.6]. Since this petition was previously ruled upon and denied on January 6, 2020, the court summarily denies the instant petition."
Beckley timely appealed the court's order denying his second petition. We granted his subsequent request that we take judicial notice of the records in his prior appeals.
DISCUSSION
Beckley concedes the trial court did not instruct the jury on the felony murder or natural and probable consequences doctrines. He nonetheless urges the court erred in summarily denying his second section 1172.6 petition because the jury might have convicted him under some "other theory under which malice is imputed to a person based solely on that person's participation in a crime." (§ 1172.6, subd. (a).) We disagree, as the record belies Beckley's claim.
At trial, the prosecutor argued that Beckley committed the murder and attempted murders by shooting at the victims from the backseat of a car driven by his codefendant. In addition, the prosecutor emphasized that Beckley fired the shots with the intent to kill.
The jury then convicted Beckley after receiving instructions that it could return guilty verdicts only if it determined Beckley "intended to kill" the victims. And the jury found that Beckley committed the attempted murders willfully and with deliberation and premeditation-i.e., that Beckley "intended to kill when he acted" and "decided to kill before acting" after "carefully weigh[ing] the considerations for and against his choice." Finally, the jury found that Beckley "personally and intentionally discharged a firearm" in committing all three crimes.
Thus, in convicting Beckley, the jury necessarily determined he personally shot at the victims with the intent to kill. (See People v. Cortes (2022) 75 Cal.App.5th 198, 205 ["we presume a jury understands and follows the court's instructions"].) We therefore conclude that Beckley is ineligible for section 1172.6 relief as a matter of law, and that the trial court properly denied his petition. (See People v. Hurtado (2023) 89 Cal.App.5th 887, 893 (Hurtado) ["[t]he record supports the trial court's decision to deny the petition because [the defendant] was not eligible for relief"]; see also People v. Curiel (Nov. 27, 2023, S272238) __ Cal.5th __ [2023 WL 8178140, at *15] [prima facie showing is not made where record conclusively establishes every element of the offense].)
None of Beckley's arguments in opposition persuades us otherwise. Beckley first contends the trial court committed reversible error by failing to appoint counsel to represent him in connection with his petition. But because Beckley is categorically ineligible for section 1172.6 relief, we conclude the court's failure to appoint counsel was harmless. (See Hurtado, supra, 89 Cal.App.5th at p. 893 [any error by trial court in failing to appoint counsel was harmless where petitioner was ineligible for section 1172.6 relief].)
Beckley next urges "[t]here is a real possibility that [he] may have been convicted under an imputed malice theory" because the court gave the following, now-outdated version of CALCRIM No. 400 informing the jurors that an aider and abettor and the direct perpetrator of a crime are "equally guilty":
"A person may be guilty of a crime in two ways: One, he or she may have directly committed the crime. I will call that person the perpetrator; [t]wo, he or she may have aided and abett[ed] a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (Italics added.)
Beckley notes that, following his trial, the Judicial Council of California amended CALCRIM No. 400 "by removing the word 'equally' from the phrase 'equally guilty' [in the instruction]." (People v. Johnson (2016) 62 Cal.4th 600, 640 (Johnson).) And he contends the "equally guilty" language in the version of CALCRIM No. 400 used in his case "could lead jurors to convict a defendant through imputing malice in a case that does not involve the natural and probable consequences theory of liability." He argues further that the prosecutor exacerbated the risk of a conviction premised on imputed malice by "underscor[ing] the 'equally guilty' language in his [closing] argument."
The revised, operative version of CALCRIM No. 400 provides: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator." (CALCRIM No. 400.)
Beckley ignores, however, that the prosecutor argued Beckley was the direct perpetrator in the drive-by shooting, and that he emphasized the "equally guilty" language only in urging the jury to convict Beckley's codefendant as an aider and abettor:
"[Deputy District Attorney]: A person may be guilty of a crime in two ways. One, he may have directly committed the crime-defendant Beckley shooting that gun-two, he may have aided and abetted a perpetrator who directly committed the crime. A person is equally guilty of the crime whether . . . he personally aided and abetted the perpetrator who committed it. Once again, a person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it. So when defendant Beckley is in that car and he shoots, and [co]defendant Finn, who drove him there, drove him away from there, he aided and abetted defendant Beckley who committed that crime, and he's equally as responsible."
We therefore are not convinced the prosecutor's closing argument invited the jury to reach guilty verdicts by imputing the codefendant's mental state to Beckley.
Moreover, the trial court instructed the jury with CALCRIM No. 401 in addition to CALCRIM No. 400. CALCRIM No. 401 provides, in relevant part, that to convict a defendant under an aiding and abetting theory, the jury must conclude the defendant "knew that the perpetrator intended to commit the crime," "intended to aid and abet the perpetrator in committing the crime," and "did in fact aid and abet the perpetrator's commission of the crime." As Beckley acknowledges, our Supreme Court held in Johnson that this language in CALCRIM No. 401 "would have cleared up any ambiguity arguably presented by [former] CALCRIM No. 400's reference to principals being 'equally guilty'" by informing the jury that "to find [the] defendant guilty of murder as an aider and abettor[,] the prosecution must prove that defendant knew [the direct perpetrator] intended to kill [the victim], that he intended to aid and abet [the direct perpetrator] in committing the killing, and that he did in fact aid him in that killing." (Johnson, supra, 62 Cal.4th at p. 641.)
Beckley fails to identify any basis for distinguishing Johnson, and we conclude the case is controlling here. Just as in Johnson, the trial court's CALCRIM No. 401 instruction informed Beckley's jury that it could convict pursuant to an aiding and abetting theory only if it determined the aiding and abetting defendant "intended to" facilitate the murder and attempted murders. Thus, even assuming the jury concluded that Beckley merely aided and abetted his codefendant in the drive-by shooting (a possibility all but foreclosed by the prosecutor's trial theory and the jury's finding that Beckley personally discharged a firearm in committing the crimes), CALCRIM No. 401 permitted the jury to convict Beckley only if it determined that he personally acted with the intent to kill.
Finally, Beckley contends the trial court erred by denying his petition based on the allegedly erroneous conclusion that section 1172.6 bars successive petitions. Even if the court denied Beckley's petition on this basis (a point not clear to us from the record), we nonetheless affirm the court's denial because Beckley is categorically ineligible for section 1172.6 relief. (See People v. Brooks (2017) 3 Cal.5th 1, 39 ["' "if the ruling was correct on any ground, [an appellate court] affirm[s]"' "].)
DISPOSITION
The August 29, 2022 order is affirmed.
We concur: CHANEY, J., WEINGART, J.