Opinion
B320326
04-03-2023
THE PEOPLE, Plaintiff and Respondent, v. DIAMOND JONES, Defendant and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Opinion after vacating opinion filed on 11/22/22
APPEAL from an order of the Superior Court of Los Angeles County No. TA083886, Ricardo R. Ocampo, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Diamond Jones filed a petition to vacate his conviction for attempted murder and to be resentenced under the predecessor to Penal Code section 1172.6. The superior court denied the petition on the ground that Jones failed to make a prima facie case for relief. We affirm.
Subsequent statutory references are to the Penal Code. Jones filed his petition under the predecessor to section 1172.6, which was codified as section 1170.95. (See Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) For the sake of consistency and to avoid confusion, we will refer only to the current statutory designation.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, a jury convicted Jones of premeditated attempted murder (§§ 664, 187, subd. (a)) and found true allegations that he personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and committed the attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)). (People v. Jones (Sept. 9, 2008, B197557) [nonpub. opn.] (Jones).) The court sentenced him to life in prison with the possibility of parole, plus 25 years on the firearm enhancements. The court also imposed and stayed a minimum 15-year prison term pursuant to section 186.22, subdivision (b)(5). In 2008, we affirmed the judgment in an unpublished opinion. (Jones, supra, B197557.)
The court's sentencing minute order and an abstract of judgment filed in March 2007 states that the 15-year minimum term was imposed pursuant to subdivision (b)(1)(C) of section 186.22. The authority for that punishment, however, is subdivision (b)(5) of section 186.22. The March 2007 abstract of judgment does not reflect the stay of the minimum 15-year term. This was subsequently corrected, as reflected in an amended abstract of judgment filed in 2016.
In February 2022, Jones, with the assistance of counsel, filed in the superior court a petition for resentencing under section 1172.6.
The district attorney filed a response to the petition in which he argued that the record of conviction showed that Jones's conviction was not based on the natural and probable consequences doctrine or any other theory that could support relief under section 1172.6. The district attorney supported his argument with the jury instructions given at Jones's trial, which show that the jurors were instructed that, to convict Jones of attempted murder, they had to find that he "intended to kill." The instructions do not include any instruction on the natural and probable consequences doctrine.
Jones's counsel filed a reply to the district attorney's response. Counsel acknowledged that the jury was not instructed as to the natural and probable consequences doctrine, but argued that the evidence, "the instructions as a whole," and the arguments of counsel during his trial permitted the jury to convict him of attempted murder under an imputed malice theory.
On April 20, 2022, the court denied the petition on the ground that it failed to state a prima facie case for relief.
Jones filed a timely notice of appeal, and we appointed counsel for him. His appointed appellate counsel filed a brief identifying no issues on appeal and requesting that we independently review the record to determine whether there are any arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Jones did not file a timely supplemental brief. On November 22, 2022, we filed an opinion affirming the court's order.
After counsel filed his Wende brief, our Supreme Court decided People v. Delgadillo (2023) 14 Cal.5th 216. The Supreme Court stated that the procedures described in Wende "do not apply to an appeal from the denial of postconviction relief, even if the defendant has a state-created right to the appointment of counsel for that appeal." (Id. at p. 226.) When, however, appointed counsel on such an appeal finds no arguable issues to be pursued on appeal and the appellant "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.)
On February 17, 2023, we granted defendant's motion to recall the remittitur to allow defendant to file a supplemental brief. Defendant has filed a supplemental brief in which he contends that he "was not the actual shooter[;] he did not intend to kill or attempt[] to kill anyone." He further argues that the court gave a kill zone instruction that our Supreme Court has disapproved.
DISCUSSION
Under Senate Bill No. 1437 (Reg. Sess. 2017-2018) (Stats. 2018, ch. 1015, § 4), the natural and probable consequences doctrine can no longer support a conviction for murder or attempted murder. (People v. Gentile (2020) 10 Cal.5th 830, 846; People v. Sanchez (2022) 75 Cal.App.5th 191, 196.) Under section 1172.6, a person previously convicted of "attempted murder under the natural and probable consequences doctrine" may petition to have the conviction vacated and to "be resentenced on any remaining counts." (§ 1172.6, subd. (a).)
By its terms, section 1172.6 applies "only to attempted murders based on the natural and probable consequences doctrine." (People v. Coley (2022) 77 Cal.App.5th 539, 548 (Coley).) When, as here, the defendant seeks to vacate an attempted murder conviction under section 1172.6 and the record of conviction shows that the court did not instruct the defendant's jury on the natural and probable consequences, the defendant is not entitled to relief as a matter of law. (Coley, supra, at pp. 548-549; People v. Cortes (2022) 75 Cal.App.5th 198, 205-206; cf. People v. Soto (2020) 51 Cal.App.5th 1043, 1055, 1059; People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5.) Accordingly, the court did not err in denying Jones's petition.
In his supplemental brief, Jones asserts that he was not the actual shooter, that he did not intend to kill anyone, and he did not attempt to kill anyone. Even if he was not the actual shooter, that fact does not help him; one can commit murder and attempted murder by directly aiding and abetting an actual shooter. (See People v. Offley (2020) 48 Cal.App.5th 588, 595-596 [Senate Bill No. 1437 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' "].) Jones's assertions that he did not intend to kill or attempt to kill anyone are contrary to the jury's findings. A section 1172.6 "petition is not a means by which a defendant can relitigate issues already decided." (Coley, supra, 77 Cal.App.5th at p. 549.)
Jones further contends that our Supreme Court, in People v. Canizales (2019) 7 Cal.5th 591, disapproved of a kill zone instruction used in his case. Even if this issue is cognizable in this appeal from the denial of Jones's section 1172.6 petition, our record does not indicate that a kill zone instruction was given in this case.
DISPOSITION
The court's April 20, 2022 order denying Jones's petition for resentencing is affirmed.
We concur: CHANEY, J. BENDIX, J.