Opinion
B323798
06-27-2024
THE PEOPLE, Plaintiff and Respondent, v. BORIS ORLANDO GOODLOE, Defendant and Appellant.
Spolin &Dukes, Aaron Spolin, Caitlin Dukes and Jeremy M. Cutcher for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. TA098877-03, Eleanor J. Hunter, Judge. Affirmed.
Spolin &Dukes, Aaron Spolin, Caitlin Dukes and Jeremy M. Cutcher for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
EGERTON, J.
Boris Orlando Goodloe appeals from the trial court's order denying his petition for resentencing under Penal Code section 1172.6. We affirm because the record of conviction establishes Goodloe is ineligible for resentencing as a matter of law.
References to statutes are to the Penal Code. Effective June 30, 2022, former section 1170.95 was renumbered section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
FACTS AND PROCEDURAL BACKGROUND
1. The charges, verdicts, and direct appeal
On June 1, 2008, Laurence Cartwright was in his apartment with his mother Sherry. Cartwright was" 'affiliated'" with the Campanella Park Piru gang. He "left the apartment at one point." "[S]hortly thereafter, Sherry heard gunshots." She went to the front door and saw Cartwright "lying on the ground and a man standing over him with a gun. The man shot at Laurence." The man then got into the back seat of a Camry.
We take our facts from Goodloe's "Statement of Facts" in his petition. As discussed below, Goodloe says he "largely replicated" those facts from the opinion on direct appeal, People v. Lewis et al. (Sept. 24, 2012, B226839) [nonpub. opn.] (Goodloe I). In his opening brief here, Goodloe uses the same "largely replicated" language. He then says, "Appellant relies on these facts to provide the Court with a broad overview and to the extent they are not contradicted below." Goodloe- who is represented on appeal by the same retained counsel who represented him in the superior court-does not explain what this means, or in what way-if any-his view of the facts now differs from those he recited in his petition for resentencing.
Officers saw the Camry (which had been reported stolen) and followed it. It accelerated and crashed. Three men jumped out. An officer identified Goodloe as the driver, Eddie Dwayne Lewis as the front passenger, and Jamillion Brown as the rear passenger. Officers found two guns in the Camry: a nine-millimeter semiautomatic rifle and a nine-millimeter Taurus handgun. Casings found in the Camry and at the scene had been fired from the same two guns.
Goodloe, Lewis, and Brown were all members of the Swamp Crips gang. Their gang was an "enem[y]" of the Campanella Park Piru gang. Cartwright survived.
The People charged Goodloe, Lewis, and Brown with the attempted willful, deliberate, and premeditated murder of Cartwright and with shooting from a motor vehicle. The People alleged various firearm, gang, and infliction of great bodily injury enhancements. The People also charged Goodloe with unlawful taking or driving of a vehicle.
A jury convicted Goodloe on all three counts. The jury found true the allegation that the attempted murder was willful, deliberate, and premeditated. The jury also found true the gang allegations and the allegations that a principal intentionally used and discharged a firearm. The jury found not true the allegations that a principal intentionally discharged a firearm causing great bodily injury to Cartwright, and that Goodloe personally inflicted great bodily injury on Cartwright.
The trial court sentenced Goodloe to 35 years to life for the attempted murder (a minimum eligible parole date of 15 years because of the gang enhancement plus 20 years for the "principal" firearm allegation) plus five years (the midterm of two years plus three years for the gang enhancement) on the taking/driving a vehicle count. The court stayed the sentence for shooting from a motor vehicle.
Another panel of this court affirmed Goodloe's conviction. (The panel remanded the case for the calculation of credits, assessment of fees, and correction of the abstract of judgment.) (Goodloe I.)
2. Goodloe's petition for resentencing
On April 5, 2022, Goodloe-represented by retained counsel -filed a "Petition to Vacate Attempted Murder Conviction and be Resentenced on Remaining Counts." Goodloe attached a declaration stating an information had been filed against him "that allowed the prosecution to proceed against [him] on a natural and probable consequences theory of attempted murder"; he was convicted of attempted murder following a trial; and he "could not now be convicted of attempted murder because of changes made to Penal Code sections 188 and 189." Goodloe added, "I have retained counsel and so I am not requesting that this court appoint counsel for me during this re-sentencing process."
Under "Statement of Facts," Goodloe stated, "The facts set forth below are largely replicated from those set forth in the Court of Appeal decision relating to Petitioner's appeal of his conviction," apparently referring to Goodloe I. Goodloe asserted his "Petition fully complies with the dictates of [section 1172.6] and makes a prima facie showing." Goodloe seemed to be referring to his one-page declaration that tracked the language of a form petition filed by many petitioners.
Goodloe said he "was not the shooter"; rather, he "was the driver." Goodloe stated the jury had found not true the allegations that he personally discharged a firearm and personally inflicted great bodily injury on the victim. Goodloe then asserted, "[I]t is clear that Petitioner could have only been convicted of attempted murder pursuant to the natural and probable consequences doctrine and so Petitioner makes a prima facie case with respect to the same." Goodloe's petition made no mention of direct aiding and abetting.
This statement is partly correct. While a handwritten edit to the amended information alleges Goodloe "personally used a firearm," that allegation did not go to the jury. The court instructed the jury on the personal discharge of a firearm as to Brown and Lewis only. The court did instruct the jury, as to all three defendants, on the infliction of great bodily injury. The jury found the great bodily injury allegation not true as to both Goodloe and Lewis.
On June 3, 2022, the prosecution filed a response to Goodloe's petition. The prosecution noted Goodloe's jury "was not instructed on the natural and probable consequences theory of liability," and he was prosecuted as a "perpetrator[ ] who acted with actual malice." The prosecution attached a copy of Goodloe I and of the jury instructions given at Goodloe's trial.
Goodloe filed a reply. Goodloe stated his petition "included the required declaration stating that he is eligible for relief," as well as the superior court case number and "year of conviction." Thus, Goodloe said, he "clearly establishe[d] a prima facie case in accordance with the dictates of Penal Code § [1172.6]." Goodloe did not mention the jury instructions. Nor-having taken his facts from Goodloe I himself-did he object to the prosecution's submission of that opinion.
The court held a hearing on July 1, 2022. The district attorney appeared by Webex. Don Nguyen appeared on behalf of Goodloe. Goodloe was not present. The court stated, "We are at the prima facie case stage. The court has read and considered the 117[2.6] motion that was submitted on behalf of Mr. Goodloe. [¶] Also, the court has reviewed the response . . . of the People and the attached exhibits which contain the appellate opinion but more importantly, the jury instructions. [¶] And also, to kind of throw in the mix, I was the trial judge that did this case, and I actually remember this case."
The reporter's transcript states, "Defendant present with counsel" but that's clearly an error. At the outset of the hearing, the court stated, "Mr. Goodloe is not present in court. He filed an [1172.6] motion, and he had private counsel." The court asked for appearances and Nguyen stated, "Don Nguyen from Spolin law firm for Mr. Goodloe." There is no indication in the record that Spolin or Nguyen asked the court to order Goodloe out from state prison for the hearing. Nor did Goodloe's counsel object to proceeding in his client's absence. On appeal, Goodloe has not raised any issue about the court proceeding without him there. (Cf. People v. Basler (2022) 80 Cal.App.5th 46, 51, 53, 57-58 [petitioner has constitutional right to be present at evidentiary hearing conducted after order to show cause has issued].)
The court noted the "main argument" in Goodloe's reply brief was that he "could have been convicted under natural and probable consequences." The court continued: "That is not really the standard. The standard is was [sic] the defendant convicted under [the] natural and probable consequences theory, to highlight that, because that is what he put in his petition I believe."
The court asked Nguyen if he wished to be heard. Nguyen replied, "The court should take the petitioner's factual allegation as true and make a preliminary assessment regarding the petitioner whether or not he should be entitled to this relief [sic]. [¶] As if the factual allegations were proven, if so [sic], the court must issue an order to show cause in this case, Your Honor, under People v. Lewis, 11 Cal.5th 952. [¶] Other than that, I just wanted to submit on the pleading that the court already has."
The prosecutor said he had nothing to add.
The court said both Goodloe's petition and the prosecution's response were "very thorough." The court found "most important[ ]" the jury instructions. The court noted, "Lewis allows the court to act with a little bit of a filter at the prima facie stage, and I recognize that it is a very low burden."
The court continued, "However, there is still a threshold the defendant has to make, and one of those thresholds is that he was convicted on [a] theory that is no longer valid. And one of those being natural and probable consequences or . . . felony murder which doesn't apply in this situation. [¶] In Mr. Goodloe's situation, . . . the instructions given were [401] that dealt with aiding and abetting, and then also [601]that dealt with attempted murder, and then willful[,] premeditated, deliberate. [¶] The court did not instruct on any type of natural and probable consequences with regard to . . . attempted murder. [¶] The defendant was convicted on a theory as being a direct aider and abettor. While I don't believe he was the actual shooter, that wasn't the evidence that was presented. He was, however, looked at as a direct aider and abettor with a specific intent to kill being an element, and as such, because no natural and probable consequences instructions were given, no malice was imputed to the defendant based on the theory. [¶] The defendant is not legally eligible for relief under Penal Code section 117[2.6]. So your petition is denied."
The reporter's transcript states "40401" and "60601." These are plainly typographical errors.
DISCUSSION
1. Governing law
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) eliminated the natural and probable consequences doctrine as a basis for murder liability and limited the scope of the felony murder rule. (See generally People v. Reyes (2023) 14 Cal.5th 981, 986; People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) Senate Bill 1437 also provided an avenue for a person convicted under the former law to petition the sentencing court to vacate his conviction and be resentenced if he could no longer be convicted under the amended law. (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong); Lewis, at pp. 959-960.) Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), effective January 1, 2022, extended resentencing eligibility to individuals convicted of attempted murder under the natural and probable consequences doctrine. (Stats. 2021, ch. 551, § 1(a).) Section 117[2.6] "applies by its terms only to attempted murders based on the natural and probable consequences doctrine." (People v. Coley (2022) 77 Cal.App.5th 539, 548 (Coley).)
If the petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold an evidentiary hearing. At the hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty under the amended law. (§ 1172.6, subds. (c), (d)(3); Strong, supra, 13 Cal.5th at pp. 708-709.)
At the prima facie stage, the trial court takes as true the petitioner's factual allegations and assesses whether the petitioner would be entitled to relief if those allegations were proved. (Lewis, supra, 11 Cal.5th at p. 971.) However, "[t]he record of conviction will necessarily inform the trial court's prima facie inquiry under section 117[2.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Ibid.)
The jury instructions are part of the record of conviction, because the instructions "given at a petitioner's trial may provide 'readily ascertainable facts from the record' that refute the petitioner's showing, and reliance on them to make the eligibility or entitlement determinations may not amount to 'factfinding involving the weighing of evidence or the exercise of discretion,'" which may not take place until after an order to show cause issues. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted on other grounds Sept. 23, 2020, S263939, and held for Lewis, supra, 11 Cal.5th 952, review dismissed Nov. 17, 2021, and opinion citable to the extent not inconsistent with Lewis; see People v. Estrada (2022) 77 Cal.App.5th 941, 946, 949 (Estrada) [jury instructions showed trial court never instructed the jury on the natural and probable consequences doctrine; summary denial of petition affirmed].) The verdicts also are part of the record of conviction. (People v. Harden (2022) 81 Cal.App.5th 45, 47-48, 55-56 (Harden) [affirming summary denial of petition; jury instructions and verdicts irrefutably established as a matter of law that defendant was ineligible for resentencing].)
We independently review the trial court's determination that Goodloe failed to make a prima facie showing. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251 (Williams); Harden, supra, 81 Cal.App.5th at p. 52.)
2. Goodloe is ineligible for resentencing as a matter of law
At Goodloe's trial, the court gave the jury CALCRIM Nos. 600 and 601. CALCRIM No. 600 listed the elements of attempted murder the People were required to prove: "1. The defendant took at least one direct but ineffective step toward killing another person; AND 2. The defendant intended to kill that person." The instruction defined a "direct step," telling the jurors, "A direct step indicates a definite and unambiguous intent to kill." CALCRIM No. 601 explained what the prosecution was required to prove on the allegation that the attempted murder was willful, deliberate, and premeditated. The instruction told the jurors,
"The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting."
The court also instructed the jury with CALCRIM Nos. 400, "Aiding and Abetting: General Principles," and 401, "Aiding and Abetting: Intended Crimes." CALCRIM No. 401 told the jurors, "Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." The court did not give the jury CALCRIM Nos. 402 or 403 on the natural and probable consequences doctrine. (CALCRIM Nos. 402, 403.)
Direct aiding and abetting requires the jury to find the defendant acted with express malice-intent to kill-and is therefore still a valid theory of liability of aiding and abetting attempted murder. (Gentile, supra, 10 Cal.5th at p. 848; Coley, supra, 77 Cal.App.5th at p. 548. See also People v. Mumin (2023) 15 Cal.5th 176, 190 [perpetrator of attempted murder must have specific intent to kill]; People v. Covarrubias (2016) 1 Cal.5th 838, 890 [intent to kill unlawfully and express malice are in essence one and the same]; People v. Nguyen (2015) 61 Cal.4th 1015, 1054 [aider and abettor to attempted murder must intend to kill]; Estrada, supra, 77 Cal.App.5th at p. 945 [petitioner convicted of first degree murder as aider and abettor with intent to kill ineligible for § 1172.6 relief].) Accordingly, an accomplice to attempted murder may make a showing of prima facie eligibility for relief under section 1172.6 only if there was a possibility the jury convicted him based on the natural and probable consequences doctrine. Here, it is undisputed that Goodloe's jury was not instructed on the natural and probable consequences doctrine. Rather, the jury was instructed on direct aiding and abetting under CALCRIM No. 401. Goodloe necessarily was convicted on the valid direct aiding and abetting theory under the instructions given.
Coley, supra, 77 Cal.App.5th 539, is directly on point. In that case, the court of appeal affirmed the denial-at the prima facie stage-of the defendant's resentencing petition. (Id. at p. 548.) A jury had convicted Coley of attempted murder (as well as murder). The trial court had given the jury (among other instructions) CALCRIM Nos. 400, 401, 600, and 601. (Coley, at p. 542.) The appellate court noted CALCRIM No. 600 "requires a determination that 'the defendant[ ] intended to kill that person.'" (Coley, at p. 547.) The court cited People v. McCoy (2001) 25 Cal.4th 1111, 1118 [defendant who is guilty of attempted murder under a direct aiding and abetting theory must have the specific intent to kill]. (Coley, at p. 547.) The Coley court noted, "An intent to kill is the equivalent of express malice, at least when there is no question of justification or excuse, and by finding appellant guilty of attempted murder, the jury necessarily found he had personally harbored intent to kill or express malice . . . ." (Id. at pp. 547-548.) The same is true here.
Nowhere in his petition or reply filed in the trial court, nor in his opening and reply briefs here on appeal, does Goodloe even mention the jury instructions given at his trial, much less make any attempt to distinguish Coley and the other governing cases. Instead, he seems to assert that-because he submitted a declaration tracking the language of section 1172.6, subdivisions (a)(1)-(3)-the court was required to issue an order to show cause and conduct an evidentiary hearing. Goodloe also argues that, because he was not the shooter, his conviction "was based on vicarious liability" and he therefore is eligible for resentencing. Goodloe is mistaken on both counts.
Goodloe's first assertion ignores Justice Groban's statement for a unanimous court in Lewis that, "The record of conviction will necessarily inform the trial court's prima facie inquiry under section 117[2.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) As we have said, the jury instructions and verdicts are part of the record of conviction.
As for Goodloe's argument about vicarious liability, Goodloe seems to be unfamiliar with direct aiding and abetting as a basis for liability. Under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another if he aids the commission of that offense with knowledge of the direct perpetrator's unlawful intent and with an intent to assist in achieving those unlawful ends. (Gentile, supra, 10 Cal.5th at p. 843.) It is well settled that Senate Bill 1437 did not eliminate direct aiding and abetting liability for murder, because a direct aider and abettor to murder must possess malice aforethought. (Williams, supra, 86 Cal.App.5th at p. 1252.)
There are other problems with the arguments Goodloe makes in his briefs. In no particular order:
• Goodloe asserts he had to allege only that the "the information charging [him] 'allowed the prosecution to proceed under a theory of . . . murder under the natural and probable consequences doctrine.'" But the statute grants relief only to "[a] person convicted of . . . attempted murder under the natural and probable consequences doctrine." (§ 1172.6, subd. (a), italics added.)
• Goodloe contends the trial court erroneously placed the burden of proof on him. Goodloe confuses the party that has the burden at the prima facie stage with the party that has the burden at the evidentiary hearing. After a petition for resentencing is filed and the court has received a response and a reply, the trial court must "determine whether the petitioner has made a prima facie . . . showing that [he] is entitled to relief." (§ 1172.6, subd. (c), italics added. See People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 925, 936 [affirming summary denial of section 1172.6 petition where "petitioner [could not] establish a prima facie case for relief"]; People v. Pickett (2023) 93 Cal.App.5th 982, 985, 989, review granted Oct. 11, 2023, S281643 [though petition facially sufficient, it was devoid of factual allegations about victim's death; defendant "merely state[d] the legal conclusion that he could not now be convicted" because of changes made by Senate Bill 1437; summary denial affirmed].) If the petitioner makes this showing, the court issues an order to show cause. (§ 1172.6, subd. (c).) Once the court issues an order to show cause, the prosecution bears the burden to prove beyond a reasonable doubt that the petitioner is not entitled to relief. (§ 1172.6, subd. (d)(3).)
• Goodloe notes-correctly-that "the factual summary of an appellate opinion is not evidence that may be properly considered on the initial petition." (Italics omitted.) After the passage of Senate Bill 775, courts have held that, by allowing consideration of" '" 'the procedural history'" '" in a prior appellate opinion, the Legislature intended to prohibit consideration of the factual summary in an appellate opinion. (People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238; People v. Flores (2022) 76 Cal.App.5th 974, 988.) But it was Goodloe himself who "replicated" the facts from Goodloe I in his briefs both in the trial court and here on appeal. (Cf. People v. Vance (2023) 94 Cal.App.5th 706, 710, 713-714 [by failing to object to consideration of prior opinion, petitioner forfeited the issue].) In any event, the trial court-who had tried the case-did not rely on Goodloe I in denying Goodloe's petition. Rather, the court relied on the jury instructions given at his trial.
In sum, the record of conviction conclusively establishes Goodloe was not convicted under the natural and probable consequences doctrine or any other theory of imputed malice. Rather, the jury was instructed that, to find Goodloe guilty of attempted murder, the prosecution had to prove he "took at least one direct but ineffective step toward killing" the victim, and he "intended to kill" the victim. He is therefore ineligible for resentencing as a matter of law.
DISPOSITION
We affirm the denial of Boris Orlando Goodloe's petition for resentencing.
We concur: EDMON, P. J. LAVIN, J.