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People v. Boyd

California Court of Appeals, Second District, Fourth Division
Aug 17, 2023
No. B323890 (Cal. Ct. App. Aug. 17, 2023)

Opinion

B323890

08-17-2023

THE PEOPLE, Plaintiff and Respondent, v. HARRY JACKSON BOYD, Defendant and Appellant.

Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.


NOT TO BE PUBLISHED

APPEAL from a postconviction order of the Superior Court of Los Angeles County No. MA007943, Daviann L. Mitchell. Affirmed.

Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

MORI, J.

Harry Jackson Boyd appeals from a postconviction order denying his second petition for resentencing under Penal Code section 1172.6 (former § 1170.95). Section 1172.6 sets forth a resentencing proceeding for any person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed based solely on that person's participation in an underlying crime. Following appointment of counsel and briefing by the parties, the trial court denied appellant's resentencing petition without issuing an order to show cause, as the jury had found appellant aided and abetted in the murders of two people with the specific intent to kill.

Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We refer to section 1172.6 for ease of reference. All subsequent references to statutes are to the Penal Code unless otherwise indicated.

On appeal from the postconviction order, appellate counsel filed a brief raising no issues and requesting that we proceed under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Appellant has filed his own supplemental brief raising several issues. We affirm.

BACKGROUND

In 1996, appellant and his co-defendant Terry Tyrone Evans were charged with two counts of first degree murder of Ronald Greene and Latonya Walker. The information further alleged that appellant and Evans committed both murders while engaged in the commission of robbery (§ 190.2, subd. (a)(17)), Evans personally used a firearm (§ 12022.5, subd. (a)), and a principal was armed with a firearm (§ 12022, subd. (d)). According to the prosecution's evidence at trial, appellant and Evans planned and executed the robbery-murders together, but it was undisputed that Evans alone shot and killed both victims.

In light of the jury's verdicts and findings, we find it unnecessary to further discuss the underlying facts of each murder.

At the conclusion of trial, the court instructed the jury under CALJIC No. 3.00, which provided in relevant part that "principals" liable for a crime included "[t]hose who directly and actively commit the act constituting the crime," and "[t]hose who aid and abet the commission of the crime." In describing the liability of an aider and abettor, the jury was instructed on the natural and probable consequences doctrine and felony murder (CALJIC Nos. 3.02, 8.10, 8.21-8.21.1).

As to the robbery-murder special circumstance, the jury was also instructed under CALJIC 8.80.1, which provides in relevant part as follows: "If you find that a defendant was not the actual killer of a human being, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree." The instruction also required the jury to "decide separately as to each of the defendants the existence or nonexistence of each special circumstance alleged in this case. If you cannot agree as to all the defendants, but can agree as to one of them, you [must] make your finding as to the one upon which you do agree."

The jury sent two notes to the court during deliberations. The jury first requested a definition of the phrase "actively and directly commit the act" as provided in CALJIC No. 3.00. Following a conference with trial counsel, the court declined to further define that phrase. Next, the jury asked whether it was required to be unanimous in deciding what made a person a "principal" for purposes of CALJIC No. 3.00. In response, the court stated the jury need not be unanimous on the issue.

The jury found appellant and Evans guilty as charged and found the special circumstance allegations on both counts of murder, including the robbery-murder special-circumstance allegations, to be true. Appellant was sentenced to two terms of life without the possibility of parole plus four years.

The court stayed a consecutive term of two years imprisonment on one count of murder under section 654.

On direct appeal in 1998, this court modified appellant's abstract of judgment for presentence custody credits but otherwise affirmed his judgment of conviction. (People v. Evans and Boyd (Sept. 24, 1998, B113243) [nonpub. opn.] pp. 1, 25-26 (Boyd I).)

Thereafter, appellant filed a petition for writ of habeas corpus in the superior court, contending among other things that the trial court prejudicially erred by instructing the jury on the natural and probable consequences doctrine under People v. Chiu (2014) 59 Cal.4th 155. The superior court denied the petition, reasoning that because the jury's special circumstance findings required a finding that appellant aided and abetted both murders with the intent to kill, it did not rely on the natural and probable consequences doctrine. We summarily denied appellants' habeas petition raising the same contentions in this court.

In 2019, appellant filed his first petition under section 1172.6 to vacate his murder convictions, alleging he was convicted of murder under the natural and probable consequences doctrine for which he could no longer be convicted. The trial court summarily denied the petition, again relying on the jury's special circumstance findings to conclude the jury necessarily had found he aided and abetted the murders with the intent to kill. On appeal from the postconviction order, we held:

"The trial court correctly concluded appellant was conclusively ineligible for relief under section [1172.6] based on the jury's special-circumstance findings. At appellant's trial, the court instructed the jury under CALJIC No. 8.80.1 that it could not find the robbery-murder special-circumstance allegations to be true as to a defendant who was not the actual killer unless he aided and abetted the murder with the intent to kill. As it was undisputed that appellant was not the actual
killer of either of the victims, the jury's findings that these special-circumstance allegations were true leave no doubt that it found appellant had aided and abetted the first degree murders of both victims with the intent to kill. [Citation.] These findings rendered appellant ineligible for relief under section [1172.6]."
(People v. Boyd (July 29, 2020, B297468) [nonpub. opn.] (Boyd II)) p. 9, fns. omitted (Boyd II).)

In 2022, appellant filed his second petition for resentencing, again alleging he had been convicted of first degree murder under invalid theories of felony murder or the natural and probable consequences doctrine. The court-appointed counsel and received briefing from the parties. Attached to the People's written opposition was both Boyd I and II, as well as the jury instructions from trial. The People argued that appellant's second resentencing petition was collaterally estopped and alternatively that appellant remained liable for murder as a direct aider and abettor with the intent to kill. In reply, appellant argued "there has been a significant change in the law" regarding section 1172.6, such that his claims were not barred by collateral estoppel. In support, appellant referred to People v. Lewis (2021) 11 Cal.5th 952 (Lewis).

At a hearing on appellant's second resentencing petition, the court agreed with the People that "collateral estoppel applies." Resisting this conclusion, appellant argued that due to significant changes in the law as set forth in People v. Strong (2022) 13 Cal.5th 698 (Strong), he was not collaterally estopped from relitigating issues by filing a successive resentencing petition. The trial court disagreed and found Strong inapposite on both the facts and the law. The court concluded that the jury "could not have returned [its special circumstance] findings without determining that the appellant aided and abetted in the murders of two people with the specific intent to kill." The court summarily denied appellant's petition. Appellant timely appealed.

Appellant's appointed counsel filed a brief requesting that we independently review the record for error pursuant to Delgadillo, supra, 14 Cal.5th at pp. 231-232. In Delgadillo, our Supreme Court held that when appointed counsel finds no arguable issues in an appeal from the denial of a section 1172.6 petition, "(1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel's brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter." (Id. at pp. 231-232.)

We directed counsel to send the record and a copy of the brief to appellant. We also notified appellant of his right to respond within 30 days and his appeal could be dismissed if he failed to respond. Appellant filed a supplemental letter brief.

DISCUSSION

Under Delgadillo, if an appellant files a supplemental brief, "the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Delgadillo, supra, 14 Cal.5th at p. 232.) We address the four contentions raised in appellant's supplemental brief.

First, appellant contends the trial court abused its discretion by applying collateral estoppel to his second resentencing petition. Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings if the issue sought to be precluded is identical to the one decided in a former proceeding; the issue was actually litigated and necessarily decided in the former proceeding; the decision in the former proceeding is final and on the merits; and the party against whom preclusion is sought is the same as or in privity with the party to the former proceeding. (Strong, supra, 13 Cal.5th at p. 716.)

Appellant does not dispute that these elements are satisfied by our analysis and conclusions in Boyd II. Instead, he relies on the "well-settled equitable exception to the general rule [ ] that preclusion does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue." (Strong, supra, 13 Cal.5th at p. 716.) As the Supreme Court in Strong clarified, however, this general exception applies only to a significant change in the law as to determinations of a relevant issue. (Id. at p. 717.) In other words, the change in law must "undermine[] the basis for the superior court's denial of [a prior section 1172.6] petition." (People v. Farfan (2021) 71 Cal.App.5th 942, 946 (Farfan).)

Here, the trial court correctly found no change in law on the relevant issue in this case, i.e., whether the jury's findings on appellant's intent to kill, as provided in the robbery-murder special-circumstance instructions, rendered appellant ineligible for relief under section 1172.6 as a matter of law. Strong and Lewis, on which appellant has relied, provides no change or clarification on this issue. (Compare Strong, supra, 13 Cal.5th at pp. 710, 716-718 [discussing major participation/reckless indifference findings that predate Banks and Clark]; Lewis, supra, 11 Cal.5th at p. 957 [discussing the appointment of counsel and the court's ability to consider portions of the record of conviction when making a prima facie determination].) Absent any change in the law regarding the effect of a jury's finding of an intent to kill in a robbery-murder special circumstance, the equitable exception identified by appellant does not apply.

Second, appellant contends the trial court improperly found he had failed to make a prima facie showing under section 1172.6. However, in affirming the summary denial of appellant's first resentencing petition, this court held the jury's true findings on the robbery-murder specialcircumstance allegations "rendered appellant ineligible for relief under section [1172.6]." (Boyd II, supra, at p. 3.) Indeed, we found "the jury could not have returned those findings without determining that appellant aided and abetted in the murders of two people with the specific intent to kill." (Id. at p. 4.) Having again reviewed the jury instructions and verdicts in the record of appellant's conviction, we reach the very same conclusion in this appeal.

Third, appellant challenges the robbery-murder special-circumstance jury instruction as impermissibly vague. Appellant asserts that because the instructions required a finding that "he intended to kill 'a human being' while committing one or more first degree murders, the jury could have found the felony-murder special circumstance allegation[s] true as to both victims even if he intended to kill only one victim . . . ." This contention challenges the conduct of appellant's original trial; it is not cognizable in this postconviction appeal. (See Farfan, supra, 71 Cal.App.5th at p. 947 [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"].) In any event, we previously found the jury instruction under CALJIC No. 8.80.1 to be "clear and easy to understand, and we presume the jury followed it" to determine whether "appellant aided and abetted in the murders of two people with the specific intent to kill." (Boyd II, supra, at p. 4.) Appellant provides no authority persuading us otherwise.

Finally, appellant contends appointed appellate counsel rendered ineffective assistance "in not consulting with [appellant] or raising meritorious claims on appeal." There is no constitutional right to effective assistance of counsel in postconviction proceedings or proceedings to obtain collateral relief from a judgment of conviction. (Delgadillo, supra, 14 Cal.5th at pp. 226-227.) Even if there were, as we have discussed, appellant has not demonstrated how appointed counsel's performance fell below an objective standard of reasonableness, or how any such performance prejudiced appellant as a result. (See Strickland v.Washington (1984) 466 U.S. 668, 687-688; People v. Lucero (2000) 23 Cal.4th 692, 732 ["'[c]ounsel may not be deemed incompetent for failure to make meritless objections'"].)

DISPOSITION

The postconviction order is affirmed.

We concur: CURREY, P. J., ZUKIN, J.


Summaries of

People v. Boyd

California Court of Appeals, Second District, Fourth Division
Aug 17, 2023
No. B323890 (Cal. Ct. App. Aug. 17, 2023)
Case details for

People v. Boyd

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. HARRY JACKSON BOYD, Defendant and…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Aug 17, 2023

Citations

No. B323890 (Cal. Ct. App. Aug. 17, 2023)