Opinion
E079674
07-18-2023
THE PEOPLE, Plaintiff and Respondent, v. NOAH ROOSEVELT DAVIS, Defendant and Appellant.
Noah Roosevelt Davis, in pro. per.; and Martin Kassman, 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NOT TO BE PUBLISHED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. FWV1405287 Jon D. Ferguson, Judge. Affirmed.
Noah Roosevelt Davis, in pro. per.; and Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAPHAEL, J.
Noah Roosevelt Davis appeals the denial of his Penal Code section 1172.6 petition to vacate his conviction for attempted murder. After his counsel filed a no-issue brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), Davis filed his own supplemental brief. We affirm.
Unlabeled statutory citations refer to the Penal Code.
BACKGROUND
"One night in 2014, defendants and three other men were riding in a car in Rialto. According to Calvin Ransom, one of the men in the car, the group passed by a pedestrian who associated with a rival gang. One of the men stated that the pedestrian, David Richardson, was an enemy, so they parked the car at a nearby apartment complex and grabbed a gun. The men approached a gate, and Davis held the gate open while Albert, who had the gun, crossed onto the street where the 'enemy' was. Ransom then heard gunshots. The men then ran back into the car and drove off. Later that night, Albert told Ransom, '[T]hose gunshots that you heard that was me. I did that. I killed him.' Richardson sustained seven gunshot wounds and died at the scene." (People v. Albert (2020) 50 Cal.App.5th 743, 746 (Albert).)
"Ransom was in the same gang as defendants and was also charged with the crimes at issue here, but Ransom pleaded guilty pursuant to a plea bargain and testified for the prosecution at trial. For clarity, when we use the term defendants, we refer to Albert and Davis, but not Ransom." (Albert, supra, 50 Cal.App.5th at p.746, fn. 1.)
The jury convicted Davis of first degree murder (§ 187, subd. (a)), and street terrorism (§ 186.22, subd. (a)). As to the murder charge, the jury found true allegations that Davis committed the murder "for the benefit of, at the direction of, or in association with a criminal street gang," (§ 186.22, subd. (b)(1)) as well as allegations that a principal personally used a firearm, personally and intentionally discharged a firearm, and personally and intentionally discharged a firearm proximately causing great bodily injury or death (§ 12022.53, subds. (b)-(d), (e)(1)).
In March 2021, Davis filed a petition under former section 1170.95, now section 1172.6. In August 2022, the trial court denied Davis's petition. The court noted the jury was instructed on two theories of first degree murder-willful premeditation and deliberation and lying in wait-and that both required the jury to find Davis acted with malice aforethought. The court also noted that the jury was not instructed on felony murder or murder under the natural and probable consequences doctrine.
Davis appealed.
ANALYSIS
On Davis's request, we appointed counsel to represent him on appeal. Counsel filed a brief declaring they found no arguably meritorious issues to appeal, setting out a statement of the case, and asking us to conduct an independent review of the record.
When appealing from a postconviction order a defendant does not have a constitutional right to independent review under Anders/Wende if appellate counsel cannot identify any arguable issues. (Delgadillo, supra, 14 Cal.5th at p. 231.) However, "[i]f the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Id. at p. 232.) Here, after appellate counsel filed a brief notifying us Davis's appeal presented no arguable issues, we offered Davis an opportunity to file a personal supplemental brief, and he did so.
Anders v. California (1967) 386 U.S. 738 (Anders); People v. Wende (1979) 25 Cal.3d 436 (Wende).
Under section 1172.6, "[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 . . . may file a petition with the court that sentenced the petitioner to have the petitioner's murder . . . conviction vacated and to be resentenced." (§ 1172.6, subd. (a).) When passed, section 1172.6 eliminated murder liability under a natural and probable consequences theory and severely curtailed liability under the felony murder rule, but it "did not . . . alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily 'know and share the murderous intent of the actual perpetrator.'" (People v. Offley (2020) 48 Cal.App.5th 588, 595-596.)
Davis was convicted of murder as a direct aider and abettor of the murder. The jury was not instructed on any other theory of liability, and therefore could not have convicted Davis on any other theory. Accordingly, Davis is not eligible for relief under section 1172.6.
In his supplemental brief, Davis makes several arguments about alleged errors in his trial and sentencing. However, the time to raise such arguments was in his direct appeal from his conviction. The only issue before us now is whether the trial court properly denied Davis's petition under section 1172.6. Section 1172.6 is directed at those who cannot now be convicted of murder "because of" certain recent changes to the murder laws. (§ 1172.6, sub. (a)(3).) We cannot address any alleged errors in Davis's trial.
Davis also argues he was not an aider and abettor, did not know the shooter's intent, did not share the shooter's intent, was not lying-in-wait, was not himself the shooter, and that the prosecution generally failed to meet its burden to prove he was guilty of first degree murder. However, these too are challenges to the original conviction and do not support finding he might have been convicted of murder under a now defunct theory.
DISPOSITION
We affirm the order denying Davis's petition.
We concur: McKINSTER, Acting P. J. MILLER, J.