Opinion
G058758
08-13-2020
THE PEOPLE, Plaintiff and Respondent, v. JERRY ALLEN JUDSON, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF127190) OPINION Appeal from a judgment of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In 2008, a jury convicted appellant Jerry Allen Judson of first degree murder (Penal Code, § 187) and attempted premeditated murder (§§ 664, 187, subd. (a)) and determined Judson intentionally discharged a firearm during the commission of his crimes. (§ 12022.53, subd. (c).) In an unpublished opinion, this court modified Judson's murder conviction from first degree to second degree and affirmed the judgment in all other respects. (People v. Judson (March 2, 2010, G042246) [nonpub. opn.].) Judson's sentence was amended to a total term of 62 years to life in state prison.
All further undesignated statutory references are to the Penal Code.
We earlier granted Judson's request to take judicial notice of the opinion. --------
In 2019, Judson filed a petition to vacate his convictions under section 1170.95, alleging he was convicted "pursuant to the felony murder rule or the natural and probable consequences doctrine." The prosecutor moved to dismiss Judson's petition based on evidence in the underlying case Judson was the actual killer. Appointed counsel for Judson objected to the motion but did not disagree with the prosecutor's representation of the evidence. The trial court granted the prosecution's motion and dismissed Judson's petition.
Judson appealed, and his appointed appellate counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738. Judson has not filed a supplemental brief. Because our review of the record discloses no arguable issue, we affirm the postjudgment order denying Judson's section 1170.95 petition.
I
FACTS AND PROCEDURAL HISTORY
We discussed in detail the underlying facts in our earlier opinion. Suffice it to say in 2005, Judson was inside his home with his son when two unarmed men arrived to purchase marijuana. After smoking marijuana together, Judson—who hours later was found to have an "'abuse level'" of methamphetamine in his system—retrieved a shotgun from his truck and shot both men. One of the men, Chris W., later died from his wounds and the other, Dennis D., escaped wounded. (People v. Judson (March 2, 2010, G042246) [nonpub. opn.].)
Judson was charged and convicted of first degree murder and attempted premeditated murder. As noted, the jury also found Judson had intentionally discharged a firearm during the commissions of his crimes. In our earlier opinion, we modified Judson's first degree murder conviction to second degree murder based on the prosecutor's decision to rely on a theory of implied malice. We affirmed the judgment against Judson in all other respects and his sentence was modified to 62 years to life. (People v. Judson (March 2, 2010, G042246) [nonpub. opn.].)
Following the Legislature's enactment of Senate Bill No. 1437, Judson filed a petition in the trial court for resentencing under section 1170.95. The court appointed counsel for Judson and received briefing from both the Public Defender and District Attorney's offices. As noted, the court denied Judson's petition based on the undisputed fact he was Chris W.'s actual killer. The record is also clear Judson was convicted of intentionally attempting to kill Dennis D. and not as an aider and abettor. (People v. Judson (March 2, 2010, G042246) [nonpub. opn.].)
After Judson appealed the denial of his section 1170.95 petition, his appointed appellate counsel filed a brief raising no issue, but asking this court to independently review the appellate record. As noted, Judson has not filed a supplemental brief.
II
DISCUSSION
Following the Wende guidelines, we have reviewed counsel's brief and the entire appellate record. Counsel's brief suggests one potential legal question to assist the court in its review: whether Judson is eligible for resentencing.
The Legislature enacted Senate Bill No. 1437 to "'amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.'" (People v. Martinez (2019) 31 Cal.App.5th 719, 723, quoting Stats. 2018, ch. 1015, § 1, subd. (f).)
The bill created section 1170.95 to allow individuals "convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . ." (§ 1170.95, subd. (a).) The statute provides in pertinent part: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause." (§ 1170.95, subd. (c).)
We do not discern any arguable issue that might cast doubt on the trial court's denial of Judson's section 1170.95 petition. Judson is not entitled to relief under Sen. Bill 1437 because he was not convicted of felony murder or murder under a natural and probable consequences theory. (See CALCRIM No. 540A [felony murder liability is predicated on the commission of an underlying nonmurder felony]; see People v. Prettyman (1996) 14 Cal.4th 248, 269 ["To trigger application of the 'natural and probable consequences' doctrine, there must be a close connection between [a] target crime aided and abetted and [an] offense actually committed"].) The relevant statutory language does not extend the benefits of Sen. Bill 1437 to the crimes Judson committed.
Our review of the entire record, including the question identified by counsel, does not show the existence of an arguable issue. (Wende, supra, 25 Cal.3d at pp. 442-443.) Consequently, we affirm. (Id. at p. 443.)
III
DISPOSITION
The postjudgment order denying Judson's section 1170.95 petition is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.