Opinion
F084885
06-08-2023
THE PEOPLE, Plaintiff and Respondent, v. SCOTT RAY EMERSON, Defendant and Appellant.
James S. Thomson, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Merced County. No. SUF22701, Steven K. Slocum, Judge.
James S. Thomson, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 1998, appellant and defendant Scott Ray Emerson (appellant) was convicted after a court trial of second degree murder, pursuant to People v. Watson (1981) 30 Cal.3d 290, 296-297 (Watson), where the California Supreme Court held an intoxicated driver who causes a fatal collision may be convicted of second degree murder based upon implied malice under certain circumstances. In 2000, appellant's conviction was affirmed on direct appeal.
In 2022, appellant filed a petition for resentencing of his second degree murder conviction pursuant to Penal Code section 1172.6. The court denied the petition.
All further statutory citations are to the Penal Code unless otherwise indicated. Appellant filed his petition in 2022 pursuant to "section 1170.95." As will be discussed below, the statute was substantively amended, effective on January 1, 2022; and renumbered as section 1172.6 without further change on June 30, 2022. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.) As such, we refer to the subject statute by its current number throughout this opinion, except where otherwise indicated.
On appeal, appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and People v. Wende (1979) 25 Cal.3d 436. Appellant submitted his own letter brief and requested this court address certain issues.
We address appellant's issues and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This court granted appellate counsel's request to take judicial notice of the record in appellant's direct appeal, People v. Emerson (Mar. 29, 2000, F032385). The nonpublished opinion that affirmed appellant's conviction on direct appeal was filed as an exhibit in support of the prosecution's opposition to appellant's petition. The following facts and procedural background are from the record and opinion in appellant's direct appeal. In reviewing a section 1172.6 petition, the court may rely on "the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3); People v. Clements (2002) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 406, fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in fact finding at the prima facie stage. (People v. Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) We have recited the factual statement from appellant's direct appeal to place his arguments in context and will not rely on that factual statement to resolve appellant's appeal from the trial court's order that found his petition did not state a prima facie case for relief.
On March 27, 1998, appellant was driving on Highway 99 while under the influence of methamphetamine. He traversed the median, drove into oncoming traffic, and collided with two vehicles. As a result of the collision, 22-year-old Christopher Owens was killed and three German tourists, the Winters, were injured.
The Charges
On August 13, 1998, an information was filed in the Superior Court of Merced County charging appellant with count 1, second degree murder (§ 187); count 2, gross vehicular manslaughter while intoxicated (§ 191.5); count 3, felony driving under the influence (DUI) causing injury (Veh. Code, § 23153, subd. (a)); count 4, possession of drug paraphernalia (Health &Saf. Code, § 11364); and count 5, driving with a suspended license (Veh. Code, § 14601.1), with multiple victim enhancements (Veh. Code, § 23182).
TRIAL EVIDENCE
On September 29, 1998, appellant waived his right to a jury trial. In November 1998, the court conducted a two-day bench trial.
The prosecutor stated he was going to rely on an implied malice theory of second degree murder based on Watson because appellant was driving under the influence and caused the fatal collision. Defense counsel stated he was not going to contest the fact that appellant was driving the vehicle that was involved in the fatal accident, there were some substances in his blood, and the accident was caused by his manner of driving, but the defense theory was his conduct did not reach the level of implied malice to constitute second degree murder.
Prosecution Evidence
Shortly after 2:00 p.m. on March 27, 1998, Kenneth Ohleyer was driving in the fast lane on Highway 99 in the area of Worden Road when he saw, in his rear-view mirror, appellant's black pickup approaching behind him. When Ohleyer moved into the slow lane, appellant passed him, pulled into the slow lane, then twice crossed the fog line on the right side of the slow lane and returned to the center of the lane. The third time appellant crossed the fog line, he overcorrected, crossed over the grassy center divider and drove directly into oncoming traffic. Ohleyer saw what looked like an explosion. He immediately slowed and pulled to the right while his passenger called 911.
Ohleyer's passenger testified consistent with Ohleyer's account.
Tom Valles also observed appellant approaching behind him. Valles moved into the slow lane, then appellant passed his car and pulled into the slow lane in front of him. Valles saw appellant straddle the fog line for a few hundred feet. Valles passed appellant at approximately 70 miles per hour and returned to the slow lane. Appellant then pulled into the fast lane and passed Valles. Appellant looked at Valles as he passed, revved his motor, and "took off" at approximately 90 miles per hour. As Valles watched appellant's pickup, he saw it straddle the fog line, shoot across the fast lane and center divider and into oncoming southbound traffic. The pickup collided with two vehicles, one containing three people, the other containing one.
The parties stipulated that, if called as a witness at trial, forensic pathologist, James A. Wilkerson, would have testified consistently with his two-page final pathological diagnosis of the cause of death of Owens, whose car was hit by appellant's vehicle.
California Highway Patrol (CHP) Officer Lawrence Gale investigated the collisions. He testified that appellant's pickup sustained major front-end damage, as well as a side impact at the driver's door. The two other vehicles, a Pontiac and a white Plymouth, both suffered major front-end damage. Gale estimated that appellant's pickup was traveling at a speed of 62 miles per hour when it crossed into oncoming traffic. Gale did not see any evidence that appellant had applied his brakes when he crossed the median.
CHP Officer Mike Colodeizey inspected appellant's pickup following the collision and determined the tires and brakes were in good condition.
CHP Officer Sean Hart contacted appellant in the hospital emergency room. At 8:20 p.m., Hart directed hospital personnel to draw a blood sample from appellant. Hart also retrieved a glass pipe that hospital personnel had found in appellant's pocket while he was in the emergency room.
The parties stipulated that an initial scraping of a substance found on the glass pipe tested positive for methamphetamine. They further stipulated that additional scrapings sent to the Department of Justice were found to contain 0.01 grams of methamphetamine.
CHP Officer Jesse Diaz described the glass pipe as the type commonly utilized by drug users to smoke methamphetamine. He explained that drug users place the methamphetamine, in rock form, into one end of the pipe, burn it with a match, and inhale the smoke.
Forensic toxicologist Kenji Ota testified that appellant's blood sample contained methamphetamine (350 ng per ml) and amphetamine. Ota stated that appellant's blood contained the amount of methamphetamine found in the blood of a person abusing the drug. Ota observed that appellant's blood pressure and heart rate in the emergency room remained high for quite a long time, a finding consistent with methamphetamine use. These facts, and appellant's erratic driving and possession of the glass pipe, led Ota to conclude appellant was driving while under the influence of methamphetamine.
Appellant's blood also contained mendazaline, a pharmaceutical related to Valium often given in emergency rooms.
On cross-examination, Ota admitted it was possible appellant was coming down off a methamphetamine high and was falling asleep at the time he crossed the center divider and drove into oncoming traffic. However, he observed that appellant was awake prior to being medi-flighted to the hospital. Ota testified that, even if appellant had been falling asleep at the time of the collisions, he would still have been under the influence of methamphetamine and his driving would have been impaired as a direct result of his use of methamphetamine. Ota also believed that, because a methamphetamine user would have to use a fair amount of methamphetamine to get to the point where he or she would suddenly "crash" or fall into a heavy sleep while driving, the user would be aware that a "crash" potentially could occur.
On March 29, 1998, CHP Officer Michael Morris advised appellant of his rights at the hospital. At first, appellant did not say anything, then he told Morris," 'Just tell them I didn't do any stuff that day. I was clean.'" When Morris asked appellant what he meant, he said," 'Just tell them I'm sorry. I didn't mean to kill anyone. I hadn't done any dope for two days.' "
On April 2, 1998, CHP Officer Gerald Elrod contacted appellant at the hospital. Appellant agreed to talk with Elrod. Appellant told him that on the morning of March 27, 1998, he had changed the oil in his pickup. He drove to a friend's house and watched a movie. Then he and his friend decided to drive to Modesto to pick up one of appellant's trailers so he could haul some walnut burl. Appellant left for his father's house to pick up some burls. Appellant and his friend drove separately toward Modesto on Highway 99. At some point, the two stopped to get gas; appellant also bought a burrito, some potatoes, and milk. The two friends continued driving toward Modesto. Appellant told Elrod he was driving 65 to 70 miles per hour, and as fast as 80 miles per hour at times.
Appellant admitted his driver's license was suspended and that he had a prior DUI conviction. He told Elrod he had been ordered to attend a DUI class but had failed to finish it. He said he was aware of the consequences of driving under the influence of drugs, stating:" 'I'm fully aware of the consequences of doing that. It's a bad thing. I do drugs sometimes but I never drive.'" He stated that he had lost a cousin in a DUI accident.
Appellant explained he was eating when the collisions occurred. He believed he was rear-ended by another vehicle and lost control as a result. He denied using drugs on the day of the accident and claimed he had not used drugs since a few days before the incident, at which time he had ingested alcohol and snorted two lines of cocaine.
CHP officer Shane McConnell also investigated the collisions and viewed the three vehicles. He testified that appellant committed multiple traffic violations, including exceeding the basic speed law (Veh. Code, § 22349, subd. (a)), making unsafe lane changes (Veh. Code, § 21658, subd. (a)), failing to maintain the right half of the roadway (Veh. Code, § 21650), cutting through the center median (Veh. Code, § 21460, subd. (a)), and tailgating (Veh. Code, § 21703). Based on these violations and the additional information he obtained during his investigation, McConnell believed appellant directly caused the collisions as a result of driving recklessly while under the influence of methamphetamine. McConnell also confirmed that appellant's cousin had died as a result of a fatal collision involving alcohol.
Appellant's Trial Testimony
Appellant testified on his own behalf. He stated that two days prior to the accident he had taken some drugs. However, he did not feel as if he were under the influence of those drugs on the day of the collisions. He only felt tired. He remembered thinking he would stop in Merced to wait for his friend and tell him he was too tired to drive. Appellant did not remember falling asleep, driving off the roadway, or colliding with any other vehicles. The last thing he remembered was driving down Highway 99 and eating his lunch. He testified he had been driving to Modesto to pick up some walnut burls and another man who worked for him was in another truck driving behind him.
On cross-examination, appellant acknowledged that his statements to the police regarding the events of the day in question had been accurate. He denied knowing that injury or death could be consequences of driving under the influence of drugs. He said that if he had known something like that was going to happen, he never would have driven that day. He admitted he was aware others had died as a result of drivers who were under the influence of alcohol or drugs.
Appellant denied owning the glass pipe that was found in his clothes. He believed the pipe might have been in the truck when he bought it. He denied ever smoking methamphetamine but admitted he had snorted it. He explained that two days before the collisions, he snorted what he believed was cocaine, but the drug must have been methamphetamine. He stated he had used methamphetamine quite a bit during the time period preceding the collisions. He admitted he had prior convictions for being under the influence of methamphetamine, receiving stolen property, and grand theft.
Closing Arguments
In closing argument, the prosecutor argued the disputed question was whether appellant acted with malice, and appellant's testimony-that he was not under the influence and last used drugs two days before the fatal collision-was not credible and was inconsistent with the high levels of methamphetamine in his system. Appellant claimed he was not intoxicated because he was trying to evade responsibility, and "he knows that if he's driving under the influence that it's a very serious crime, and so he's denying being under the influence to evade responsibility." The prosecutor argued appellant admitted his subjective appreciation of driving under the influence because of what happened to his cousin and told the officers that he understood the consequences of driving under the influence.
"I submit when you're talking about Watson usually people have gone to driving school, even seen films and that some of the things they use, that kind of information that they receive through formal education is the information that can elevate it from just an objective standard to a subjective standard because there has been some teaching here. [¶] Life has taught him more fully than any film or course could teach that you if you're out there and somebody is in a car and using alcohol and drugs you could die...."
Defense counsel agreed the disputed question was whether there was evidence in malice as required by Watson and argued there was no evidence of malice to raise a gross vehicular manslaughter charge to second degree murder. He was a heavy drug user and may have built up a tolerance so that he was fine while he was driving, until he came down, fell asleep, and the collision occurred.
The prosecutor replied that appellant testified he slept the night before the collision, the claim that he had been using drugs for several days and his body suddenly shut down was not supported by his own testimony, and the rest of his testimony was not credible. Appellant was aware of what could happen if he drove while intoxicated, but "he just decided that he was going to drive anyway. We know that he knows that he can be arrested for driving without a license, but that has never stopped him," he was going to do what he wanted regardless of the consequences, and in this case, "he happened to have the actual awareness of the risk of driving like this" and didn't care, and that constituted implied malice.
The Court's Verdict
The court found appellant guilty of all counts and the special allegations true.
As to count 1, the court stated it found appellant guilty of second degree murder because the evidence led to the "inescapable conclusion of a finding that [he] drove at a high rate of speed" while under the influence and acted with implied malice. The heavy amount of drugs in his system reflected his "conscious disregard for the safety of others, his wanton act in taking drugs and getting into a vehicle and embarking on a trip that was going to take hours" on a highway. "And even though he knew he was sleepy, by his own testimony and he was planning on stopping, he still drove. Again, an act of wanton disregard for the safety of others." "[T]here [are] a number of different factors that I have considered. I think that ... all of them in total, especially the fact that [appellant] was under the influence, that he had a history of being a substance abuser, that he had knowledge of the danger of driving a vehicle while under the influence, and he had specific knowledge of the fact that it can cause death, all lead to the inescapable conclusion that he had implied malice as defined under the law. As a result of that, I find him guilty of Count One."
Sentence
On December 14, 1998, the court sentenced appellant to 15 years to life for count 1, second degree murder; a consecutive term of three years for count 3; and three consecutive one-year terms for the multiple victim enhancements. The court imposed concurrent terms for counts 3 and 4, and stayed the term imposed for count 2.
Direct Appeal
On March 29, 2000, this court filed the nonpublished opinion in appellant's direct appeal. (People v. Emerson, supra, F032385.) We vacated appellant's conviction in count 2 for gross vehicular manslaughter because it was a lesser offense of count 1 and ordered one of the terms imposed for the multiple victim enhancement stricken, so that appellant's corrected term would be 15 years to life plus five years.
As to count 1, second degree murder, we rejected appellant's assertion that "he could not have harbored implied malice, because the trial court found he was under the influence of drugs and therefore only a conviction for gross vehicular manslaughter was justified by the evidence. However, though [appellant] purports to challenge the sufficiency of the evidence supporting the second degree murder conviction, he does not in the text of his argument point to any underlying evidentiary deficiency with respect to this crime; he instead relies solely on the legal argument that the trial court should have considered whether his voluntary intoxication negated the implied malice required for second degree murder. In the absence of a proper challenge to the evidence, we will not evaluate its sufficiency, and thus we limit our discussion to [appellant's] legal argument."
This court reviewed Watson and relevant statutes and held "[t]he Legislature has plainly stated, and the Supreme Court has explicitly acknowledged, that current law forecloses the use of evidence of intoxication to negate the element of implied malice for purposes of a murder charge. Accordingly, the trial court did not error in refusing to consider [appellant's] intoxication for such a purpose."
On June 28, 2000, the superior court filed an amended abstract of judgment, that appellant was sentenced to 15 years to life for count 1, second degree murder, plus a consecutive term of three years for count 3, and two one-year terms for the multiple victim enhancements.
APPELLANT'S PETITION FOR RESENTENCING
On February 5, 2022, appellant filed a petition for resentencing pursuant to section 1172.6 and requested appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where he checked boxes that he was eligible for resentencing because (1) a complaint, information, or indictment was filed that allowed the prosecution to proceed under a theory of felony murder, 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, or attempted murder under the natural and probable consequences doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could have been convicted of murder or manslaughter; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
The court appointed counsel to represent appellant.
The Prosecution's Opposition
On April 6, 2022, the prosecution filed opposition, and argued the record of conviction showed appellant was ineligible for resentencing as a matter of law because appellant was the actual killer who drove the vehicle that caused the fatal collision. Appellant was also ineligible because he was convicted of second degree murder based on his own implied malice pursuant to Watson and not based on any imputed malice theories.
As supporting exhibits, the prosecution attached the opinion on direct appeal; and the transcript of appellant's two-day bench trial, including the parties' arguments and the court's verdict.
Appellant's Reply Brief
On April 22, 2022, appellant's counsel filed a notice with the trial court that he would not be filing a reply brief and appellant did not agree with his analysis of the case.
Appellant filed his own reply brief in pro. per., acknowledged he was driving the vehicle, but argued he was not the actual killer and not the proximate cause of the death. Appellant challenged the reliability of the blood tests that showed he was under the influence.
Appellant also claimed he was convicted under the natural and probable consequences theory because the trial record showed his vehicle "was being chased by a black B.M.W. with a red light on the roof before the accident. After the accident, it was discovered approximately 30 bullet holes were in the truck [he] was drivings. The State of Mind of [appellant] has to be considered when evidence already with the Court shows [he] was in fear of his life, being shot at. All this proof is in the Court Records. The evidence does show [appellant] was running from something, he was just not speeding down the street, [he] was trying to keep from being shot when the accident occurred."
Such evidence was not introduced at appellant's trial and is not in the record before this court.
The Court's Hearings
On July 7, 2022, the court heard and denied appellant's motion to discharge his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118.
On August 24, 2022, the court held the hearing on appellant's section 1172.6 petition. Appellant appeared via teleconference, and his attorney was in the courtroom. The court stated it had reviewed the pleadings, including appellant's brief, and asked if there were any further arguments. Both parties declined.
The court denied the petition and held appellant was ineligible for resentencing: "[Appellant] was convicted on an implied malice theory in the DUI case. Here malice was not imputed to [appellant] by the conduct of a third-party killer. He was, in fact, the driver of the vehicle and caused the collision that resulted in the death of the victim in the case."
On August 29, 2022, appellant filed a timely notice of appeal.
DISCUSSION
I. Delgadillo/Wende
In Delgadillo, the court held a Wende analysis is not applicable to a trial court's order that denies a petition for postconviction relief under section 1172.6. (Delgadillo, supra, 14 Cal.5th at p. 222.) Delgadillo held that instead of using the process outlined in Wende, appointed counsel and the appellate court should do the following: "When appointed counsel finds no arguable issues to be pursued on appeal: (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.)
"If 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.... If the defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss the appeal as abandoned. [Citation.] . While it is wholly within the court's discretion, the Court of Appeal is not barred from conducting its own independent review of the record in any individual section 1172.6 appeal." (Delgadillo, supra, 14 Cal.5th at p. 232.)
As noted above, appellate counsel filed a brief with this court pursuant to Delgadillo and Wende. The brief also included counsel's declaration that appellant was advised he could file his own brief with this court. This court sent appellant an order that, pursuant to Delgadillo, the appeal would be dismissed as abandoned if he failed to submit a letter brief within 30 days.
On March 6, 2023, appellant filed a supplemental brief with this court in response to our Delgadillo order. Appellant has also filed a motion, in pro. per., for this court to take judicial notice of certain evidentiary claims. We will address his arguments to the extent relevant to this appeal.
As an exhibit to his opening brief on appeal, appellate counsel attached appellant's "supplemental brief" that appellant had submitted "in anticipation that counsel would file a Wende/Delgadillo brief." Appellant filed this same brief with this court in response to our Delgadillo order, which we will now address.
II. Appellant's Contentions
We first note that when appellant filed his petition for resentencing, the trial court complied with section 1172.6 and appointed counsel, received additional briefing, held a hearing on the petition, and stated reasons why it was denying the petition without issuing an order to show cause-that appellant was ineligible as a matter of law because he was convicted of second degree murder based on Watson and implied malice, and not on any theories of imputed malice. (§ 1172.6, subds. (b)(3), (c), (d).)
A. Appellant's Bench Trial
In his supplemental brief, appellant argues that when the trial court denied his petition without issuing an order to show cause, it improperly relied on a minute order and "the verdict forms" in doing so. (Italics added.) Appellant asserts these documents did not "rule out the possibility that the jury found appellant liable under the natural and probable consequences doctrine due to his driving while intoxicated." (Italics added.) Appellant argues the minute orders "and jurys [sic] verdict forms" of second degree murder were insufficient to rebut the petition's allegations of a prima facie case. (Italics added.)
Contrary to these assertions, it is undisputed that appellant waived a jury trial and was convicted of second degree murder after a two-day court trial in 1998. There were no instructions or verdict forms, a jury did not find him guilty, and the court acted as the finder of fact and law.
B. The Court's Verdict
The prima facie determination under section 1172.6 is a question of law, and the court may deny a petition at the prima facie stage if the petitioner is ineligible for resentencing as a matter of law. (Lewis, supra, 11 Cal.5th at p. 966.) In determining whether a petitioner made a prima facie case for relief, the court may review the record of conviction. (Id. at pp. 971-972 &fn. 6.) The record of conviction allows 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." (Id. at p. 971.)
The record of conviction includes the parties' closing arguments and the verdict. (People v. Lopez (2022) 78 Cal.App.5th 1, 13; People v. Ervin (2021) 72 Cal.App.5th 90, 106; People v. Jenkins (2021) 70 Cal.App.5th 924, 935.)
In a bench trial, where the defendant has waived a jury, the court acts as the finder of the facts and law and returns the verdict. (See, e.g., Carrington v. Starbucks Corp. (2018) 30 Cal.App.5th 504, 518; Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981; People v. Sivongxxay (2017) 3 Cal.5th 151, 216.)
While there were no jury instructions in this case, the record of conviction shows that throughout appellant's trial, both the prosecutor and defense counsel acknowledged in their arguments before the court that appellant was being tried for second degree murder based on implied malice pursuant to Watson. When the court found appellant guilty of second degree murder, it explained the legal elements it relied upon to find the prosecution met the burden of proof for second degree murder based on an implied malice theory under Watson. After the court returned the verdict, defense counsel filed a motion to set aside the verdict and argued there was insufficient evidence of implied malice under Watson.
We thus turn to the definition of a Watson murder.
C. Watson Murder
"A conviction for murder requires the commission of an act that causes death, done with the mental state of malice aforethought (malice). [Citation.] Malice may be either express or implied. [Citation.] Express malice is an intent to kill. [Citation.] Implied malice does not require an intent to kill. Malice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses." (People v. Gonzalez (2012) 54 Cal.4th 643, 653.) All murders committed with implied malice are of the second degree. (Ibid.)
A conviction for implied malice murder differs significantly from a conviction for murder under the natural and probable consequences doctrine. "Aider and abettor culpability under the natural and probable consequences doctrine for a nontarget, or unintended, offense committed in the course of committing a target offense has a different theoretical underpinning than aiding and abetting a target crime. Aider and abettor culpability for the target offense is based upon the intent of the aider and abettor to assist the direct perpetrator commit the target offense. By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense." (People v. Canizalez (2011) 197 Cal.App.4th 832, 852.) When a defendant is found guilty of murder under a natural and probable consequences theory of liability, "the 'intent to kill' was imputed onto [the defendant] from the actual killer or perpetrator." (People v. Montes (2021) 71 Cal.App.5th 1001, 1007.)
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) amended section 188 to prohibit imputing malice based solely on participation in a crime, requires the prosecution to prove that all principals to a murder acted with malice aforethought, and the natural and probable consequences doctrine is now invalid. (People v. Sanchez (2022) 75 Cal.App.5th 191, 196.) These amendments, however, maintained the viability of murder convictions based on implied malice, and the definition of implied malice remains unchanged. (People v. Clements, supra, 75 Cal.App.5th at p. 298.) "Second degree implied malice murder ... is not based on a theory of imputed malice." (People v. Schell (2022) 84 Cal.App.5th 437, 444.)
Watson held that a person who, knowing the hazards of driving under the influence, drives a vehicle while intoxicated and proximately causes the death of another, may be convicted of second degree murder under an implied malice theory. (Watson, supra, 30 Cal.3d at pp. 300-301.) Malice may be implied when a person willfully drives under the influence of alcohol. (Id. at p. 294.) A finding of implied malice in a Watson murder case, unlike a finding of gross negligence, "depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard." (Id. at pp. 296-297.)
1. Analysis
The record of conviction, including the legal arguments made at appellant's bench trial in 1998, establish he was charged and convicted as the sole perpetrator based on the implied malice theory of second degree murder pursuant to Watson. The court and the parties did not address the felony-murder rule, the natural and probable consequences doctrine, or the alleged culpability of any accomplices or aiders and abettors. Instead, the parties agreed the disputed issue was whether appellant acted with implied malice when he drove while intoxicated, with an appreciation of the risks, and caused a fatal injury. (See, e.g., People v. Roldan (2020) 56 Cal.App.5th 997, 1004, pet. for review dismissed, overruled on other grounds by Lewis, supra, 11 Cal.5th 952 [second degree implied malice murder under Watson is distinct from the natural and probable consequences doctrine and survives the passage of Senate Bill 1437].) "[T]he doctrine of implied malice requires that the perpetrator actually appreciate that death is the natural and probable consequence of his or her actions, and further requires that the perpetrator consciously disregard that danger. [Citations.] Senate Bill 1437 did nothing to remove implied malice as a basis for a second degree murder conviction." (People v. Roldan, at p. 1005.)
The trial court properly denied appellant's section 1172.6 petition for resentencing because he was ineligible for relief as a matter of law, and his conviction was not based on any theories of imputed malice.
D. Evidentiary Claims
Also, in his supplemental brief filed with this court, appellant restates unsupported evidentiary claims he made in his pro. per. brief filed with the trial court at the time of his petition-that the trial court did not allow him to "to present unrefutable evidence of a third parties [sic] actions that had a major part in the accident. The statements from witnesses, only in the police reports, who did not testify at the original trial, gave statements of a third parties [sic] actions, but was never put forth for the jury or the courts [sic] review."
Section 1172.6 "does not permit a petitioner to establish eligibility on the basis of alleged trial error." (People v. DeHuff (2021) 63 Cal.App.5th 428, 438, fn. omitted.)" 'The purpose of [section 1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.'" (People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Appellant cannot relitigate alleged evidentiary issues from his 1998 bench trial in his section 1172.6 petition for resentencing.
III. Appellant's Motion for Judicial Notice
During the pendency of this appeal, appellant filed a motion, in pro. per., for this court to take "judicial notice" of alleged evidentiary disputes and claims arising from his 1998 bench trial.
"An appellate court may take judicial notice of any matter of which a trial court may take judicial notice [citation]...." (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1380.) "The underlying theory of judicial notice is that the matter being judicially noticed is a law or fact that is not reasonably subject to dispute." (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz &McCort (2001) 91 Cal.App.4th 875, 882 (Lockley), italics added.) A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) "The appropriate setting for resolving facts reasonably subject to dispute is the adversary hearing. It is therefore improper for courts to take judicial notice of any facts that are not the product of an adversary hearing which involved the question of their existence or nonexistence." (Lockley, at pp. 875, 882.)
We briefly review appellant's claims to explain why his various allegations are not proper subjects for judicial notice in this appeal.
A. The Trial Court's Alleged Statements
Appellant requests this court to take judicial notice that the record from his 1998 bench trial shows the "original Trial Judge stated to both the Defense Attorney and the Prosecution Attorney that this Second Degree Murder Charge has no Malice and the Court will not hear anymore argument of Malice."
This court has already granted appellant's motion to take judicial notice of the record from his direct appeal. In finding appellant guilty of second degree murder, the trial court did not state there was no evidence of malice. Instead, as explained above, the court made lengthy findings that the evidence established implied malice and appellant was guilty of second degree murder. We decline to take judicial notice of appellant's erroneous contentions on this point.
B. Contents of Alleged Police Report
Appellant asks this court to take judicial notice that a police report allegedly stated that a witness saw another vehicle "chasing Appellants [sic] pick-up truck, shooting at Appellant," and his defense attorney never used this police report at trial to show appellant's reason "for his driving and accident."
As explained above, appellant is foreclosed using his section 1172.6 petition to raise purported evidentiary claims arising from his trial. We decline to take judicial notice of these unsupported allegations.
C. Allegations About Defense Counsel
Appellant further requests this court take judicial notice that his defense attorney was allegedly "deathly ill" during his bench trial in 1998, and purportedly died one month later.
Appellant does not explain why this assertion, if true, is necessarily relevant to his section 1172.6 petition for resentencing. According to the minute orders in the clerk's transcript, James Heusdens represented appellant at his bench trial in 1998 that resulted in his second degree murder conviction. Appellant did not raise any issues of alleged ineffective assistance in his direct appeal.
We further note that appellant failed to submit any evidence to establish the truth of this alleged fact for judicial notice, that his attorney died within a month of his bench trial. We decline to take judicial notice of this unsupported assertion.
According to a published obituary, Mr. Heusdens died in 2004, six years after appellant's conviction. A court has discretion to take judicial notice of newspaper and historical articles that may constitute" '[f]acts and propositions that are not reasonably subject to dispute' that are 'capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.'" (Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 186.)
D. Claims About the Blood Sample
Finally, appellant claims the prosecution's case at his 1998 trial was based on an "illegally taken blood sample" and, in his "original" appeal, the "illegally taken blood sample taken at the hospital was ruled as a Harmless Error even though the entire criminal conviction rested upon Appellant being intoxicated." Again, appellant is foreclosed from using his section 1172.6 petition to raise evidentiary issues from his trial, and we decline to take judicial notice of this alleged claim. In addition, appellant never raised any issues about the accuracy or admissibility of the blood tests in his direct appeal, and this court did not make any findings about harmless error in affirming his conviction.
DISPOSITION
The court's order of August 24, 2022, denying appellant's section 1172.6 petition for resentencing, is affirmed.
[*] Before Franson, Acting P. J., Meehan, J. and De Santos, J.