Opinion
E082500
06-18-2024
THE PEOPLE, Plaintiff and Respondent, v. JAMES BOYKINS, Defendant and Appellant.
James Boykins, in pro. per.; and Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FSB703832 Colin J. Bilash, Judge. Affirmed.
James Boykins, in pro. per.; and Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MENETREZ, J.
James Boykins appeals from the denial of his petition to vacate his attempted murder conviction under section 1172.6 of the Penal Code. (Unlabeled statutory references are to this code.) We affirm.
BACKGROUND
In 2008, a jury convicted Boykins of premeditated attempted murder. (§§ 187, subd. (a), 664.) The jury also found true that Boykins personally and intentionally discharged a firearm and proximately caused great bodily injury. (§ 12022.53, subds. (c), (d).) Boykins appealed, and we affirmed the judgment in an unpublished opinion. (People v. Boykins (Aug. 2, 2011, E047555) [nonpub. opn.].)
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.), which eliminated natural and probable consequences liability for murder, narrowed the definition of first degree felony murder, and created a procedure for vacating prior murder convictions that could not be sustained under the new law. (Stats. 2018, ch. 1015, § 4; People v. Gentile (2020) 10 Cal.5th 830, 843, 853.) In 2021, Senate Bill No. 775 (2020-2021 Reg. Sess.) "expanded the categories of offenses eligible for [resentencing] relief to include attempted murder and manslaughter as well as murder." (People v. Lee (2023) 95 Cal.App.5th 1164, 1174.)
Following those enactments, Boykins filed a petition to vacate his attempted murder conviction, alleging generally that he could not be convicted of the offense under current law. The People opposed the petition, arguing that the conviction of premeditated attempted murder along with the finding that he personally and intentionally discharged a weapon and caused the victim great bodily injury "contravene[d] any possibility that [Boykins] was convicted under the natural and probable consequences doctrine." The People also believed that no instruction on the natural and probable consequences doctrine was given to the jury. The People asked the trial court to take judicial notice of the record from the trial. The trial court appointed counsel for Boykins and held a hearing on the petition.
At the hearing, the trial court denied the petition, finding that Boykins had not made a prima facie case for relief. The court indicated that it had read and considered the petition, the response, and the opinion from the direct appeal. After refreshing its memory by reading the opinion, the court believed that there was no basis for resentencing because Boykins was the actual shooter, was convicted of premediated attempted murder, and was found to have personally caused great bodily injury. In addition, the court noted that it was "in the Court's record there was no natural and probable consequences instruction given."
DISCUSSION
We appointed counsel to represent Boykins on appeal, and counsel filed a no-issue brief under People v. Delgadillo (2022) 14 Cal.5th 216, asking us to exercise our discretion to conduct an independent review of the record. We advised Boykins that he could file a personal supplemental brief, which he did.
Boykins argues that the trial court erred by (1) not ruling on the prosecution's request for judicial notice or indicating the documents on which it relied and (2) impermissibly relying on the opinion from the direct appeal and on the court's memory of the case. Boykins also argues that trial counsel was ineffective by failing to object to the court's making factual findings without taking judicial notice. We find no prejudicial error.
A petitioner seeking relief under section 1172.6 "'whose petition is denied before an order to show cause issues has the burden of showing "it is reasonably probable that [in the absence of the trial court's errors the] petition would not have been summarily denied without an evidentiary hearing."'" (People v. Lewis (2021) 11 Cal.5th 952, 974; People v. Watson (1956) 46 Cal.2d 818, 836.) Boykins has failed to carry that burden. Regardless of whether the trial court committed any of the errors claimed by Boykins, any error was harmless. The record of conviction shows that the jury was not instructed on the natural or probable consequences doctrine or any other theory on which malice could have been imputed. Boykins therefore could not have been convicted of attempted murder under a now-invalid theory of liability. He accordingly is not eligible for relief under section 1172.6.
DISPOSITION
The order denying the petition is affirmed.
WE CONCUR: RAMIREZ P.J., FIELDS J.