Opinion
A167013
10-31-2023
THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD KING, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-00960869-6
MARGULIES, J.
Defendant James Edward King appeals from the denial of his petition for resentencing under Penal Code former section 1170.95, now section 1172.6. On appeal, defendant's appointed counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), which established a procedural framework to follow when counsel finds no arguable issues in a section 1172.6 appeal. Under that framework, we gave defendant notice that he had a right to file a supplemental brief or his appeal could be dismissed. (See Delgadillo, at pp. 231-232.) Defendant filed a supplemental brief, requiring us to issue an opinion evaluating his arguments. (Id. at p. 232.) We conclude none of his claims have merit and affirm the trial court's denial of his petition.
All further statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1997, a jury convicted defendant of first degree murder, first degree burglary, sodomy, and attempted forcible rape of an elderly victim, Leathia Taylor. The jury also found true great bodily injury enhancements and special circumstance allegations. Defendant was sentenced to life without the possibility of parole. In 2000, we affirmed the judgment.
In March 2022, defendant filed his petition for resentencing. The People filed an opposition arguing defendant was not entitled to resentencing because he was the actual killer and sole perpetrator. The People also argued the trial court could rely on the prior appellate opinion in considering whether defendant was entitled to resentencing relief. Defense counsel filed a reply requesting an evidentiary hearing, arguing the trial court must accept the allegations in the petition as true, the trial court could not rely on facts stated in the prior appellate opinion or weigh evidence, and there had been no finding that defendant was the actual killer. The People filed supplemental points and authorities arguing that the record conclusively showed defendant was the actual killer.
In a lengthy written ruling, the trial court denied the petition, concluding defendant had failed to make a prima facie showing of entitlement to relief because the record of conviction "unequivocally establishe[d]" that defendant was ineligible for resentencing as a matter of law. The court did not consider the facts in the prior appellate opinion or weigh the evidence. Rather, the court found defendant did not qualify for relief because he could still be convicted of felony murder as the actual killer under current law. Relying on People v. Harden (2022) 81 Cal.App.5th 45, 54-55 (Harden), the court reasoned that the record of conviction as reflected in the jury instructions and verdicts showed the jury had concluded defendant was the actual killer. The jury was instructed on malice aforethought, felony murder, and first degree felony murder in the commission of a burglary, sodomy, and rape, but no instructions were given under the natural and probable consequences doctrine. Moreover, the instructions on felony-murder special circumstances were modified and limited to determining whether defendant was the actual killer. Accordingly, the court concluded, "without weighing conflicting evidence or making credibility determinations, the record of conviction irrefutably establishes as a matter of law that [defendant] could be convicted of murder under the new law and that he is ineligible for relief under [section] 1172.6." Defendant timely appealed.
Defendant's appellate counsel filed a brief under Delgadillo, requesting we exercise our discretion to conduct an independent review of the record. We informed defendant he had a right to file a supplemental brief within 30 days raising any issues he thought should be reviewed, and if he did not do so his appeal could be dismissed. Defendant filed a supplemental brief.
II. DISCUSSION
"Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 [(2017-2018 Reg. Sess.)] '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.' [Citation.] In addition to substantively amending sections 188 and 189 . . ., Senate Bill 1437 added [former] section 1170.95, [now section 1172.6,] which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (People v. Lewis (2021) 11 Cal.5th 952, 959.)
Under Delgadillo, if a no-issues brief is filed in a section 1172.6 appeal and the defendant then "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." (Delgadillo, supra, 14 Cal.5th at p. 232.)
Defendant's letter first discusses issues related to his trial that are not cognizable in section 1172.6 proceedings. He contends he was convicted solely based on the prosecutor's statements to the jury that he had prior prison commitments for sexual assault. While acknowledging that the trial judge told the jury to disregard the statements, defendant asserts the jury would not have been able to follow that instruction. He also posits that had the jury not heard about his prior prison record, he would have been convicted of a lesser charge, such as second degree murder or voluntary manslaughter, and contends his Fifth Amendment rights were violated by the prosecutor. But section 1172.6 is not a vehicle for establishing trial error. Resentencing proceedings under the statute involve "prospective relief from a murder conviction that was presumptively valid at the time," not the correction of "errors in past factfinding." (People v. Strong (2022) 13 Cal.5th 698, 713, 714; People v. Farfan (2021) 71 Cal.App.5th 942, 947 ["mere filing of a section [1172.6] petition does not afford the petitioner a new opportunity to raise claims of trial error"].)
Next, defendant claims that his attorneys, both in the trial court and on appeal, rendered ineffective assistance of counsel. He states his attorney told him the appellate court "only deals with [section] 1172.6 issues" but, in the notice he received from this court, he was told he can file a brief raising any issues pertinent to his case. Defendant also asserts he brought the issues to the attention of his attorney, but counsel refused to raise his claims on appeal. As discussed above, however, section 1172.6 does not authorize a review of any objection a defendant might have about the proceedings leading to the conviction. Instead, it focuses on whether the defendant could have been convicted of murder had the later amendments to sections 188 and 189 been in effect. Thus, his counsel's view of the law was correct, meaning the representation did not "[fall] below an objective standard of reasonableness" as required to establish ineffective assistance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
Defendant also asserts he was abused as a child, suffers from posttraumatic stress disorder, and the judgment must be reversed because he was deprived of the right to present new evidence of childhood trauma at his trial. Defendant cites no apposite authority in support of this contention he is entitled to a new trial, and his claim is not cognizable on a section 1172.6 appeal.
Defendant also asserts that had his trial counsel presented evidence of his childhood trauma during the guilt rather than the penalty phase, he would have been convicted of a lesser charge.
Defendant also contends he is entitled to the benefit of "amendatory laws that are relevant to His case," citing to "Senate Bill No. 124," "Senate Bill 1540," and sections 1170.3 and 1170, subdivision (d)(1). Defendant contends he is being denied equal protection because the new sentencing laws, which are expressly aimed at providing relief to childhood victims of abuse, would deny him such relief because he committed a violent crime.
Effective January 1, 2022, Assembly Bill No. 124 (2021-2022 Reg. Sess.) amended section 1170 to make a low-term sentence presumptively appropriate under certain circumstances, including where childhood trauma was a contributing factor in the commission of the offense. (Stats. 2021, ch. 695, § 5.) We reject defendant's claim for two reasons. First, section 1170 concerns determinate sentencing, and is thus facially inapplicable to defendant's murder conviction, for which he received an indeterminate sentence. Second, the judgment and sentence in defendant's case is long since final, and thus he is not entitled to the retroactive benefit of the new law. (See In re Estrada (1965) 63 Cal.2d 740, 744 [ameliorative amendment applies to nonfinal judgments].)
Technically, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended section 1170 to make these changes to the law. (See People v. Jones (2022) 79 Cal.App.5th 37, 44, fn. 11.)
Defendant also emphasizes the steps he has taken to rehabilitate himself, and attaches a number of certificates and prison "chronos" evidencing his efforts, arguing that it was not until his present commitment that he understood how deeply rooted his problems were and how badly they hurt others. While we commend defendant for his efforts and progress, his efforts at rehabilitation are not relevant to the issues on appeal.
Finally, we conclude the trial court properly denied defendant's resentencing petition for failure to make a prima facie showing of entitlement to relief under section 1172.6. It is well settled that section 1172.6 precludes relief as a matter of law where the record of conviction shows a defendant was the sole perpetrator and actual killer. In Delgadillo, for example, our Supreme Court determined that the defendant was "not entitled to any relief under section 1172.6" because he "was the actual killer and the only participant in the killing." (Delgadillo, supra, 14 Cal.5th at p. 233; see also People v. Garcia (2022) 82 Cal.App.5th 956, 969 [affirming denial of resentencing because the record of conviction "unequivocally establishes" the defendant was the sole perpetrator and the actual killer]; Harden, supra, 81 Cal.App.5th at pp. 47-48 [petition for resentencing may be summarily denied when, without factfinding, weighing conflicting evidence, or making credibility determinations, the record of conviction irrefutably establishes as a matter of law that the jury determined the defendant was the actual killer].)
Here, the trial court carefully examined the jury instructions and the jury verdicts and determined, without finding facts or relying on our prior appellate opinion, that the jury necessarily found defendant was the actual killer. Like the trial court, we have reviewed the jury instructions and verdicts and reach the same conclusion. As in Harden, the trial court here instructed the jury on two theories of murder: malice murder and felony murder with CALJIC Nos. 8.10 and 8.21. (See Harden, supra, 81 Cal.App.5th at pp. 52-53.) The court also instructed the jury on first degree murder with special circumstances under a modified version of CALJIC No. 8.80.1, which permitted a true finding on the special circumstance only if the defendant was the actual killer. (See Harden, at pp. 53-55.) Defendant was the only person charged in the information, and the court did not instruct the jury on a natural and probable consequences theory, nor was the jury instructed "it could convict [defendant] as an aider and abettor, accomplice, or as a major participant . . . who acted with reckless indifference to human life." (Id. at p. 53.) The jury convicted defendant of first degree murder and found true allegations he committed the murder while engaged in the commission of burglary, sodomy, and attempted rape, and that he personally inflicted great bodily injury. Thus, as in Harden, "no juror could have voted to convict [defendant] as anything other than the actual killer." (Id. at p. 54.)
At one point in his brief, defendant cursorily asserts the district attorney and the trial court "used speculation by using the natural and probable consequences doctrine, which when boiled down amounts to speculation, premeditation, and intent that [defendant] broke into [the victim's] house to murder her while in the act of assaulting her," which is nothing more than conjecture. Defendant's assertion is unsupported by the record, which reflects, as the trial court noted, that the jury was not instructed on a natural and probable consequences doctrine.
Defendant does not contend otherwise; indeed, in his supplemental brief, he states he "retaliated" against the victim, "taking her life," and admits he assaulted and murdered her. As the actual killer, defendant is not entitled to relief as a matter of law. (§ 1172.6; Delgadillo, supra, 14 Cal.5th at p. 233.)
A reviewing court need not engage in a full review under People v. Wende (1979) 25 Cal.3d 436 on a challenge to an order denying postconviction relief under section 1172.6. (Delgadillo, supra, 14 Cal.5th at pp. 221-222.) Where, as here, a defendant has filed a supplemental brief, the reviewing court need only evaluate the specific arguments raised in the brief. (Id. at p. 232.) "The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues." (Ibid.) Having addressed the specific contentions raised in defendant's supplemental brief, our review is complete.
III. DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
WE CONCUR: HUMES, P. J., BANKE, J.