Opinion
B302262
06-17-2021
THE PEOPLE, Plaintiff and Respondent, v. JAMES BLAND, Defendant and Appellant.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. TA080626 Allen J. Webster, Jr., Judge. Affirmed.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant James Bland (defendant) appeals from the summary denial of his petition for resentencing under Penal Code section 1170.95. Defendant contends that the trial court was required to appoint counsel and permit briefing prior to finding defendant eligible or ineligible for relief. Finding no merit to defendant's contention, we affirm the order.
All further statutory references are to the Penal Code, unless otherwise indicated.
BACKGROUND
The 2007 murder conviction
In 2007, defendant was convicted of first degree murder in violation of section 187, subdivision (a), as charged in the information. The jury found true the allegations that a principal personally used and discharged a firearm and intentionally discharged a firearm causing great bodily injury and death, within the meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1). The jury also found that the murder was gang-related as alleged under section 186.22, subdivision (b)(1)(A). The trial court sentenced defendant to a total term of 50 years to life in prison, comprised of 25 years to life for the murder, and 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d). The judgment was affirmed on appeal in People v. Bernoudy (Oct. 31, 2008, B200994) (nonpub. opn.) (the appellate opinion).
Trial evidence
The evidence summarized in the appellate opinion showed that in 2005, defendant, a Blood gang member, his friend and codefendant Pablo Bernoudy, a Crips gang member, and defendant's girlfriend Theasa Wandick all went to Bakersfield from Los Angeles. There, they visited Wandick's friend Dawayna Phillips, who was married to a former Crips gang member, Dominguez Prince. Along the way defendant showed Wandick his gun, and when they arrived, Phillips asked him to put it away. Defendant, who claimed he never went anywhere without his gun, handed it to Bernoudy. Later the gun was put under the seat of Wandick's car. During their stay the three friends heard from Phillips about Prince's physical abuse, which they also witnessed firsthand. Out of Prince's presence, defendant, with his gun in his lap, told Phillips that if his sister had a boyfriend who mistreated her he would kill him.
The next day defendant and Bernoudy accompanied Prince to a liquor store. Prince became angry with Bernoudy, and defendant told Prince, “I'm not going to let you fuck with my homie.” Upon their return to the apartment, Prince punched his wife because she had not prepared food. Prince then grabbed Wandick by the throat when she went to her friend's aid and told defendant, “Come get your girl.” Phillips left with Wandick, defendant and Bernoudy, and told them that she wished Prince would die. Defendant and Bernoudy then offered to kill him. When Phillips declined the offer defendant offered to pistol whip him instead. When the group returned to the apartment, Prince hit Wandick in the face and knocked her unconscious.
Later defendant and Bernoudy accepted Prince's offer of a ride back to Los Angeles. The men were accompanied by the two women and five children. During the drive, defendant and Bernoudy whispered to each other and Bernoudy wrapped his hand in his shirt to wipe down the door handle and window switch of the car. When they arrived in Los Angeles, defendant asked Prince to make two stops. At the second stop defendant and Bernoudy got out of the car and stood together at the driver's side and Bernoudy shot Prince in the head four times. Bernoudy and defendant then ran away. Bernoudy used the same revolver that defendant had passed to him at Phillips's apartment the day before. Both Wandick and Phillips witnessed the shooting and testified at defendant and Bernoudy's trial.
The 1170.95 petition
In 2019, defendant filed a petition for resentencing pursuant to section 1170.95. The petition also requested appointment of counsel. On October 28, 2019, after a review of the court's file and the appellate opinion, the trial court found defendant ineligible for relief under section 1170.95 and summarily denied the petition. In particular, the trial court reviewed the felony complaint and information, jury instructions given at trial, the court's minutes reflecting the verdicts, and the appellate record, including the appellate opinion.
Most but not all of the documents cited by the trial court are included in the appellate record. In addition, we granted respondent's request to take judicial notice of portions of the appellate record in People v. Bernoudy, supra, B200994, including verdicts, jury instructions given, the information, and the transcript of the prosecutor's closing argument.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant contends that the trial court prejudicially erred by summarily denying his petition for resentencing without appointing counsel and permitting briefing, in violation of his federal constitutional rights to due process and the assistance of counsel.
A petitioner is entitled to the appointment of counsel, the opportunity for further briefing, and a hearing only if his petition makes a prima facie showing that he is entitled to relief. (See § 1170.95, subds. (c) & (d).) A “‘prima facie showing is one that is sufficient to support the position of the party in question.'” (People v. Drayton (2020) 47 Cal.App.5th 965, 977 (Drayton), quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) As relevant here, a person is entitled to vacatur of his murder conviction and resentencing to the underlying felony if he was convicted of felony murder or murder under a natural and probable consequences theory and all of the following conditions apply: (1) “[a] complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, ” (2) he “was convicted of first degree or second degree murder following a trial, ” and (3) he “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).)
Defendant argues that he made a prima facie showing of entitlement to relief solely because he checked all the boxes on his form petition that allege the requirements for eligibity for relief under the statute quoted in the above paragraph, as well as the box indicating that he requested counsel.
Defendant cites our opinion in People v. Ramirez (2019) 41 Cal.App.5th 923 to support his claim that he made a prima facie showing of entitlement to relief based solely on the petition's allegations. In Ramirez, we had granted a writ of habeas corpus, ruling that Ramirez was not a major participant in the underlying robbery and did not act with reckless indifference to human life. (Id. at pp. 926-927.) We held that the prior ruling not only established a prima facie showing of eligibility for and entitlement to relief, but also that the trial court was required under section 1170.95, subdivision (d)(2) to vacate the conviction and resentence Ramirez. (People v. Ramirez, supra, at pp. 932-933.) There is no such prior court decision in this case, nor did defendant check the box to allege that there was such a prior decision.
Contrary to defendant's argument, even where a petition alleges every element necessary to make out a prima facie case for relief, a trial court is not required to accept those allegations at face value, but may also examine the record of conviction. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1138, review granted Mar. 18, 2020, S260598 (Lewis); see People v. Tarkington (2020) 49 Cal.App.5th 892, 899-900, 908-909, review granted Aug. 12, 2020, S263219; People v. Edwards (2020) 48 Cal.App.5th 666, 673-674, review granted July 8, 2020, S262481; Drayton, supra, 47 Cal.App.5th at p. 968; People v. Torres (2020) 46 Cal.App.5th 1168, 1178, review granted June 24, 2020, S262011 (Torres); People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, review granted Mar. 18, 2020, S260493 (Verdugo).)
Defendant relies on two cases from the First District adopting the contrary view. (See People v. Daniel (2020) 57 Cal.App.5th 666, 673-674, review granted Feb. 24, 2021, S266336; People v. Cooper (2020) 54 Cal.App.5th 106, 118-123, review granted Nov. 10, 2020, S264684.) We respectfully disagree with both cases.
The record of conviction includes such documents as the “complaint, information or indictment filed against the petitioner; the verdict form or factual basis documentation for a negotiated plea; and the abstract of judgment.” (Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) The record of conviction also includes jury instructions and any appellate opinion in the case. (See Lewis, supra, 43 Cal.App.5th at pp. 1138-1139.) The contents of the record of conviction will defeat a defendant's prima facie showing when the record “show[s] as a matter of law that the petitioner is not eligible for relief.” (Id. at p. 1138, italics added; see Drayton, supra, 47 Cal.App.5th at p. 968; Torres, supra, 46 Cal.App.5th at p. 1177; Verdugo, at p. 333; see also People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 [record must show defendant is “indisputably ineligible for relief”].)
A petitioner is ineligible for relief under section 1170.95 as a matter of law if, like defendant in this case, he was not convicted of felony murder or murder under a natural and probable consequences theory. (See People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-1167; § 1170.95, subd. (a).) Felony-murder liability is imposed upon a person who, harboring no intent to kill or even implied malice, aids and abets an accomplice in the commission of an inherently dangerous felony, and the accomplice kills in the commission of the intended crime. (People v. Bryant (2013) 56 Cal.4th 959, 965.) Under the natural and probable consequences doctrine, a “‘person who knowingly aids and abets criminal conduct is guilty of not only the intended [target] crime... but also of any other crime the perpetrator actually commits... that is a natural and probable consequence of the intended crime.'” (People v. Medina (2009) 46 Cal.4th 913, 920.)
Here, defendant was charged and convicted of first degree murder with malice aforethought, and no underlying felony or target offense was identified in the felony complaint, the information, the verdict or the prosecution's argument. The jury was instructed with CALCRIM Nos. 400 and 401 regarding direct aiding and abetting and did not receive instructions regarding felony murder or the natural and probable consequences doctrine, such as CALCRIM No. 540B or CALCRIM No. 403. Without an underlying felony or target offense, neither felony murder nor the natural and probable consequences doctrine would have been viable theories when the defendant was convicted. (See Stats. 2002, ch. 606, § 1 [felony murder]; People v. Prieto (2003) 30 Cal.4th 226, 252 [natural and probable consequences doctrine].) Thus, it cannot be said that defendant “‘could not be convicted of first degree or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.'” (People v. Nguyen, supra, 53 Cal.App.5th at p. 1168, italics added by Nguyen, quoting § 1170.95, subd. (a)(3).) Under these circumstances, defendant is ineligible for relief under section 1170.95 as a matter of law and cannot make a prima facie showing of eligibility under the statute. The trial court thus did not err in summarily denying the petition. (See § 1170.95, subds. (c) & (d).)
In addition, the trial court did not violate defendant's federal constitutional right to counsel. Prisoners have no federal “constitutional right to counsel when mounting collateral attacks upon their convictions.” (Pennsylvania v. Finley (1987) 481 U.S. 551, 555.) Under the federal constitution, the right to appointed counsel extends only to trial and the first appeal; and when states enact statutes to provide other postconviction relief, they have substantial discretion to develop and implement such programs. (Id. at pp. 557-559.) In California, examples can be found in the rules governing petitions for writ of habeas corpus and coram nobis, which require the petition to state a prima facie showing of entitlement to relief before the court must appoint counsel. (See People v. Fryhaat (2019) 35 Cal.App.5th 969, 982.) As defendant did not make a prima facie showing of eligibility under section 1170.95, the trial court was not required to appoint counsel. (See § 1170.95, subds. (c) & (d).)
DISPOSITION
The order denying the petition for resentencing is affirmed.
We concur: ASHMANN-GERST, Acting P. J., HOFFSTADT, J.