Opinion
B330890
06-11-2024
THE PEOPLE, Plaintiff and Respondent, v. ANDREW CALVIN COLEY, Defendant and Appellant.
Derek K. Kowata, under appointment by the Court of Appeal, and Andrew Calvin Coley, in pro. per., for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA250006 Drew E. Edwards, Judge.
Derek K. Kowata, under appointment by the Court of Appeal, and Andrew Calvin Coley, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ZUKIN, J.
INTRODUCTION
In 2004, defendant Andrew Calvin Coley was convicted of attempted murder. In 2022, Coley filed a petition for resentencing of his conviction pursuant to Penal Code section 1170.95 (1172.6). The trial court summarily denied the petition. On appeal, appellate counsel filed a brief that summarized the procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Coley submitted a letter brief but makes no substantive argument. We affirm the order.
All further statutory citations are to the Penal Code unless otherwise stated. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). For ease of reference, we will refer to the section by its new numbering only.
PROCEDURAL BACKGROUND
In 2004, after a court trial, Coley was found guilty of attempted murder (§§ 664/187, subd. (a)), mayhem (§ 203), corporal injury (§ 273.5, subd. (a)), and assault with a deadly weapon likely to produce great bodily injury (§ 245, subd. (a)(1)). The court found true the allegations that Coley personally used a deadly weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (e)). The court also found that Coley suffered two prior serious or violent convictions under the Three Strikes law. (§§ 1170.12, subds. (b)-(d); 667, subds. (b)-(i).) The court sentenced Coley to 29 years to life in state prison.
On direct appeal, this court affirmed the convictions but remanded the matter for resentencing on the strike prior convictions. (People v. Coley (Oct. 12, 2005, B175868) [nonpub. opn.].) Following remittitur, the trial court resentenced Coley, pursuant to the Three Strikes law, to life in prison with a minimum term of 29 years in state prison. On appeal, this court affirmed the judgment. (People v. Coley (July 15, 2008, B190212) [nonpub. opn.].)
On December 20, 2022, Coley filed a petition for resentencing under section 1172.6. On May 9, 2023, after appointment of counsel and briefing from the parties, the trial court denied the petition. The court found Coley ineligible for relief because "[t]he record of conviction . . . indicates that [Coley] was prosecuted and convicted of the crime of attempted second degree murder under the theory in which [he] was the self-admitted sole and actual perpetrator of the crime."
Coley timely filed a notice of appeal.
DISCUSSION
Senate Bill No. 1437 was enacted 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." (Stats. 2018, ch. 1015, § 1.) Senate Bill No. 775 modified the law to "expand the authorization to allow a person who was convicted of murder under any theory under which malice is imputed to a person based solely on that person's participation in a crime . . . to apply to have their sentence vacated and be resentenced," and to clarify "that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories." (Stats. 2021, ch. 551, § 1.)
"Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended," now codified in section 1172.6. (People v. Strong (2022) 13 Cal.5th 698, 708; People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).) "If [a] petitioner ma[kes] a prima facie showing for relief, the trial court [is] required to issue an order to show cause for an evidentiary hearing." (People v. Hurtado (2023) 89 Cal.App.5th 887, 891, citing § 1172.6, subd. (c).) In assessing eligibility at the prima facie stage, the court "'"takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved."'" (Lewis, supra, 11 Cal.5th at p. 971.) The court may deny the petition, however, if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. (Id. at pp. 970-972.)
Where a trial court denies a section 1172.6 petition based on the failure to make a prima facie case for relief, our review is de novo. (See People v. Drayton (2020) 47 Cal.App.5th 965, 981, overruled in part on another ground in Lewis, supra, 11 Cal.5th at pp. 962-970.)
In his letter brief, Coley does not make any substantive argument challenging the trial court's denial of his resentencing petition. At most, he asks this court to apply the relevant law. (People v. Gonzalez (2021) 12 Cal.5th 367, 410 [it is the appellant's burden to affirmatively demonstrate error].) That said, as the sole and actual perpetrator of the attempted murder, Coley is ineligible for resentencing as a matter of law.
DISPOSITION
The trial court's postjudgment order denying Coley's section 1172.6 petition is affirmed.
WE CONCUR: CURREY, P. J., COLLINS, J.