Opinion
F087650
12-17-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE ELLIS, Defendant and Appellant.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Hannah Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Super. Ct. No. 11CM1270-002, Kathy Ciuffini, Judge.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Hannah Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
"A jury found defendant Robert Lee Ellis guilty of three counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664), three counts of assault with a firearm (§ 245, subd. (a)(2)), and one count of discharging a firearm at an occupied motor vehicle (§ 246). The jury also found true special allegations that Ellis personally used a firearm (§ 12022.5), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), which proximately caused great bodily harm (§ 12022.53, subd. (d)), and personally inflicted great bodily injury upon two of the victims (§ 12022.7, subd. (a)). He was sentenced to 92 years to life, plus 35 years in state prison." (People v. Ellis (Jan. 13, 2015, F066937 [nonpub. opn.].)
All statutory references in this opinion are to the Penal Code.
Ellis recently filed a petition for resentencing under section 1172.6, contending his conviction for attempted murder no longer comported with law. Section 1172.6, detailed below, essentially provides relief to individuals convicted of certain crimes involving facts imputing malice. The trial court denied the petition, finding Ellis failed to prove a prima facie case he was entitled to relief. Ellis appeals; we affirm.
We summarize the facts and procedure material to resolving this appeal. The entire factual background is largely immaterial and accordingly omitted.
Ellis was tried alone. The trial evidence indicated more than one shooter was involved in the case. Relative to attempted murder, Ellis was tried as the direct perpetrator-not under any malice-imputing theory including the natural and probable consequences doctrine. The jury found Ellis guilty, necessarily finding he acted with the intent to kill.
To find Ellis guilty of attempted murder, the jury was told it must find he "intended to kill _."
The jury instructions informed the jury, if it found Ellis "guilty of the crimes charged," it was "then [to] decide whether for each crime the People proved the additional allegation that [Ellis] personally and intentionally discharged a firearm during that crime causing great bodily injury." The jury was informed "[a]n act causes great bodily injury if the injury is the direct, natural and probable consequence of the act, and the injury would not have happened without the act." The jury, indeed, found the great bodily injury enhancements true.
These instructions are quoted as they were read to the jury in the original trial. Inexplicably, the parties did not include the whole, actual instructions in the appellate record. Technically, the "guilty of the crimes charged" language applied only to attempted murder as charged in Counts 1 and 2.
Ellis filed the instant petition, arguing the natural and probable consequence language in the great-bodily-injury jury instructions undermined his attempted murder conviction pursuant to section 1172.6. The People opposed resentencing, arguing Ellis was the actual perpetrator and was not tried under either a felony murder or natural and probable consequence theory. In reply, Ellis claimed "the jury undoubtedly could have imputed malice .. since there was a second shooter," and it was instructed to consider whether "a consequence is natural and probable" relative to inflicting great bodily injury.
During the hearing on the petition, the trial court acknowledged the evidence indicated "two [distinct] sets of shots .." It denied the petition because the "natural and probable consequences language" in the jury instructions referred solely to the enhancements, not the underlying "attempted murder."
DISCUSSION
"Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), ... narrowed or eliminated certain forms of accomplice liability for murder. (See Stats. 2018, ch. 1015.) Among other things, Senate Bill 1437 barred the use of the natural and probable consequences doctrine to obtain a murder conviction. [Citation.] Senate Bill 1437 also created 'a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.'" (People v. Curiel (2023) 15 Cal.5th 433, 440 (Curiel).)
These protections were extended to attempted murder convictions by "Senate Bill No. 775 (Stats. 2021, ch. 551)[.]" (People v. Sanchez (2022) 75 Cal.App.5th 191, 193.) As relevant, "[u]nder section 1172.6, 'A person convicted of ... attempted murder under the natural and probable consequences doctrine . may file a petition with the court that sentenced the petitioner to have the petitioner's . attempted murder . conviction vacated and to be resentenced on any remaining counts[.]'" (Curiel, supra, 15 Cal.5th at pp. 449-450.)
" '[T]he process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citation], including that "[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to .
Section 188 or 189 ..' [Citation.] 'When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition "to determine whether the petitioner has made a prima facie case for relief." [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. [Citations.] If, instead, the defendant has made a prima facie showing of entitlement to relief, "the court shall issue an order to show cause." '" (Curiel, supra, 15 Cal.5th at p. 450.) "[R]elief is unavailable if the defendant was either the actual [perpetrator], acted with the intent to kill, or 'was a major participant in the underlying felony and acted with reckless indifference to human life[.]' " (People v. Strong (2022) 13 Cal.5th 698, 710 (Strong).)
Major participation and reckless indifference are not at issue in this case. That exclusion applies to certain felony murders.
"The record of conviction will necessarily inform the trial court's prima facie inquiry ., allowing the court to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that ... culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process." (People v. Lewis (2021) 11 Cal.5th 952, 971.) "The record of conviction . include[s] admissible trial evidence ., the court's instructions to the jurors ., and the parties' closing arguments[.]" (People v. Ervin (2021) 72 Cal.App.5th 90, 102.)
Here, the record establishes Ellis was convicted as the actual perpetrator, including acting with intent to kill. Accordingly, he is not eligible for relief. (Strong, supra, 13 Cal.5th at p. 710; accord People v. Offley (2020) 48 Cal.App.5th 588, 599 ["if the jury did not receive an instruction on the natural and probable consequences doctrine, the jury could not have convicted the defendant on that basis, and the petition should be summarily denied."].)
It is true the jury was instructed to consider natural and probable consequences relative to inflicting great bodily injury. The jury was also, however, instructed to consider great bodily injury only after and if it found Ellis guilty. "As [the] instruction did not relate to implied malice or [attempted] murder at all, there is no reasonable probability that the jury [considered it] in the manner that [Ellis] suggests." (People v. Carr (2023) 90 Cal.App.5th 136, 146; People v. Lamb (2024) 16 Cal.5th 400, 441 ["we presume the jury was able to understand and follow the instructions."].)
Finally, we note the natural and probable consequence language in the great bodily injury instruction was simply necessary to explain proximate causation in this case, especially because the evidence indicated multiple shooters were involved.
"Section 12022.53[, subdivision] (d) requires that the defendant 'intentionally and personally discharged a firearm' [], but only that he 'proximately caused' the great bodily injury .. The jury, properly instructed, reasonably found that defendant did personally discharge a firearm. The statute states nothing else that defendant must personally do.
Proximately causing and personally inflicting harm are two different things." (People v. Bland (2002) 28 Cal.4th 313, 336; see People v. Zarazua (2008) 162 Cal.App.4th 1348, 1362; People v. Palmer (2005) 133 Cal.App.4th 1141, 1146.) Ellis simply misapprehends this concept.
See also the related discussion in People v. Soto (2020) 51 Cal.App.5th 1043, 1054-1059.
DISPOSITION
The order denying the petition for resentencing is affirmed.
[*] Before Levy, Acting P. J., Detjen, J. and Snauffer, J.