Opinion
B333818
07-31-2024
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY BOOCHEE, Defendant and Appellant.
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BA419591
THE COURT:Defendant and appellant Anthony Boochie appeals from the denial of his petition for vacatur of his murder conviction and for resentencing under Penal Code section 1172.6. Appointed counsel found no arguable issues and filed a brief requesting this court to follow the procedures set forth in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Defendant filed a supplemental brief in which he argues the record of conviction does not establish as a matter of law that he was ineligible for relief under the statute.
All further unattributed code citations are to the Penal Code.
Finding no merit to defendant's contentions, we affirm the order denying the petition.
BACKGROUND
In 2016, defendant was convicted of first degree murder (§ 187, subd. (a) and conspiracy to commit murder (§ 182, subd. (a)(1)). The jury found true the special circumstances that the murder was committed for financial gain and by means of lying in wait (§ 190.2, subd. (a)(1) &15). As to both counts the jury also found true gang and firearm enhancements alleged pursuant to section 186.22, subdivision (b)(1) and section 12022.53, subdivisions (d) and (e)(1). Defendant was sentenced to life without the possibility of parole plus 25 years to life, with other terms imposed and stayed. On direct appeal, the gang and firearm enhancements were stricken, but the judgment was otherwise affirmed in People v. Williams et al. (Oct. 24, 2018, B281118) [nonpub. opn.]. Defendant was resentenced to life without the possibility of parole.
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.), amending sections 188 and 189, the laws pertaining to felony murder and murder under the natural and probable consequences doctrine, "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).) The Legislature also passed former section 1170.95, since renumbered 1172.6, which provides a procedure to petition for retroactive relief for those who could not now be convicted under sections 188 and 189 as amended. (See People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) The procedure provides that a petition may be filed by "[a] person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime ...." (§ 1172.6, subd. (a).)
In 2019 defendant filed a petition for vacatur of his murder conviction and for resentencing which the trial court summarily denied. We affirmed the denial in People v. Boochie (May 27, 2020, B299847) [nonpub.opn.]. In 2022, after the publication of Lewis, supra, 11 Cal.5th 952 and the amendment to former section 1170.95 (Stats. 2021, ch. 551, § 2), defendant filed the current petition for resentencing.
As relevant here, the petition alleged: defendant had been charged under an accusatory pleading that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine or other theory by which malice is imputed to a person based solely on that person's participation in a crime; he was convicted of murder following trial; and he could not presently be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019.
Following the appointment of counsel, the prosecution filed opposition to the petition, and the matter was scheduled for a hearing to determine whether defendant had made a prima facie showing of eligibility for relief under the statute. Attached to the prosecution's opposition was a copy of the verdict forms, the jury instructions given at defendant's trial, and the opinion affirming the judgment against defendant.
The hearing was held on August 14, 2023, and the court heard counsel's arguments. The trial court reviewed the prosecution's exhibits, determined there had been no jury instructions given regarding felony murder, the natural and probable consequences doctrine, or imputed malice. The court found defendant had not made a prima facie showing of eligibility under section 1172.6 and was ineligible as a matter of law. The trial court denied the petition without issuing an order to show cause.
Defendant filed a timely notice of appeal.
DISCUSSION
After examination of the record, appointed counsel filed an opening brief raising no issues. Where, as here, appointed counsel finds no arguable issues in an appeal that is not from the first appeal after conviction, we are not required to conduct an independent review of the record. (See Delgadillo, supra, 14 Cal.5th at p. 226.) However, even if we do not independently review the record to identify unraised issues in a case, we give the defendant the opportunity to file his or her own supplemental brief or letter and we then evaluate any specific arguments raised. (See id. at p. 232.)
Here, counsel provided defendant with a copy of the record on appeal and informed him of his right to file his own supplemental brief. We notified defendant of counsel's brief; gave defendant 30 days to file his own letter or brief stating any grounds for an appeal, contentions, or arguments he wished to be considered; and advised him if no supplemental brief or letter is timely filed the court may dismiss the appeal as abandoned.
The record discloses that defendant's jury was instructed regarding direct aiding and abetting. The jury was not instructed with respect to the natural and probable consequences doctrine or the felony murder rule. Defendant is thus ineligible for relief under section 1172.6 as a matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666, 677.) However, as defendant filed a supplemental brief within the time allowed, we have conducted a limited review of the record and considered the contentions defendant has made in his brief. (See Delgadillo, supra, 14 Cal.5th at p. 232.)
Defendant asks the court to consider that he was never alleged to be the actual killer and there was no jury finding that he was the actual killer. He contends CALJIC No. 8.11, the jury instruction defining implied malice, allowed the jury to find imputed malice, and the special circumstances findings (financial gain and by means of lying in wait) do not justify a summary denial of the petition because they were made prior to the publication of People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. Finally, defendant concludes the trial court was not permitted to reject the factual allegations of the petition without an evidentiary hearing.
We construe defendant's complaint about CALJIC 8.11 to concern the natural and probable consequences doctrine, which was eliminated as a basis for aiding and abetting liability for murder by Senate Bill 1437. (See Lewis, supra, 11 Cal.5th at p. 957.) CALJIC No. 8.11, defines both express malice and implied malice. Although the definition of implied malice contains the phrase, "natural consequences," that phrase does not refer to the natural and probable consequences doctrine. (People v. Carr (2023) 90 Cal.App.5th 136, 144.) The trial court did not err in finding defendant's jury was not instructed with the natural and probable consequences theory of murder.
As given to defendant's jury, CALJIC No. 8.11 read: "Malice is express when there is manifested an intention unlawfully to kill a human being. [¶] Malice is implied when: [¶] 1. The killing resulted from an intentional act; [¶] 2. The natural consequences of the act are dangerous to human life; [¶] and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life."
The decisions in People v. Banks, supra, 61 Cal.4th 788 and People v. Clark, supra, 63 Cal.4th 522 provide factors for determining whether a defendant has acted as a major participant in a felony with reckless indifference to human life, thus incurring aider and abettor liability for felony murder. (See People v. Strong (2022) 13 Cal.5th 698, 721.) As defendant's jury was not instructed regarding felony murder, neither felony murder nor the factors of Banks and Clark are relevant to determining whether defendant's petition made a prima facie showing.
Not only were there no instructions regarding the natural and probable consequences doctrine or felony murder, but defendant was convicted of conspiracy to commit a crime after the jury was instructed with CALJIC No. 6.10, that made clear the jury was required to find defendant conspired to commit murder while harboring an intent to kill. In relevant part, CALJIC No. 6.10 instructed: "A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of murder and with the further specific intent to commit that crime...." Defendant's conspiracy conviction shows the jury found defendant had specifically intended to commit express malice murder, not implied malice murder or any imputed malice theory. (See People v. Medrano (2024) 98 Cal.App.5th 1254, 1261, 1264-1265.) As the jury necessarily found defendant personally possessed an intent to kill when he conspired to commit murder, he is ineligible for relief under section 1172.6 as a matter of law on that ground as well. (People v. Allen (2023) 97 Cal.App.5th 389, 393, 398, 315 Cal.Rptr.3d 323.)
As defendant was ineligible for relief as a matter of law, the trial court was not required to believe the factual allegations of defendant's petition. (See Lewis, supra, 11 Cal.5th at p. 971.) The trial court thus did not err in denying the petition without issuing an order to show cause.
DISPOSITION
The order of August 14, 2023 denying defendant's section 1172.6 petition is affirmed.
LUI, P. J., ASHMANN-GERST, J., CHAVEZ, J.