Opinion
A170165
09-17-2024
THE PEOPLE, Plaintiff and Respondent, v. ERIC LIVELY, Defendant and Appellant.
NOT TO BE PUBLISHED
(Humboldt County Super. Ct. No. CR1701997)
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
GOLDMAN, J.
In 2018, defendant Eric Lively was convicted of a single count of second degree murder (Pen. Code, § 187, subd. (a)) and sentenced to a term of 15 years to life in prison. At trial, it was undisputed that the victim was killed when struck by a truck that Lively was driving. (People v. Lively (Apr. 15, 2019, A154039) [nonpub. opn.].)
Undesignated statutory references are to the Penal Code.
In March 2023, Lively sought resentencing pursuant to section 1172.6.The trial court summarily denied Lively's petition, concluding that, as the actual killer, he was ineligible for relief.
Lively's petition was incorrectly filed under section 1170.95, which by that time had been amended and renumbered as section 1172.6. (Stats. 2022, ch. 58, § 10, eff. June 30, 2022.)
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. (People v. Delgadillo (2022) 14 Cal.5th 216, 233 [finding that defendant was "not entitled to any relief under section 1172.6" because he "was the actual killer and the only participant in the killing"]; 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]; People v. Harden (2022) 81 Cal.App.5th 45, 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 record of conviction conclusively establishes that Lively was convicted as the actual killer and that he was the only participant in the killing. Lively does not dispute the Attorney General's assertion that the jury was not instructed on the natural and probable consequences doctrine, felony murder, or any other theory in which malice is imputed to the accomplice based solely on the accomplice's participation in a crime.
Lively's arguments on appeal that the trial court erred in finding that he was the actual killer are without merit. Initially, Lively argues that the trial court (1) engaged in improper factfinding during the prima facie stage; (2) improperly relied on its recollection of the underlying trial; and (3) incorrectly concluded that his second degree murder conviction necessarily meant the jury found he harbored an intent to kill. The sufficiency of the prima facie showing, however, is a legal question we review de novo. (People v. Lopez (2022) 78 Cal.App.5th 1, 14.) Accordingly, these asserted errors are harmless because the record conclusively establishes that Lively was the actual killer. (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Brooks (2017) 3 Cal.5th 1, 39 [The trial court's ultimate conclusion was correct and,"' "if [a trial court's] ruling was correct on any ground, we affirm"' "].)
We note that Lively incorrectly cites People v. Mumin (2023) 15 Cal.5th 176, 190 as holding that "[b]ecause malice may be imputed, second degree murder does not require a specific intent to kill." (Italics added.) In fact, the decision reads, "Because malice may be implied, second degree murder does not require a specific intent to kill." (Ibid., italics added.)
Nor are we required to defer to Lively's allegation in his petition that he was not the actual killer where the allegation is conclusively rebutted by the record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 971 [court may rely on record of conviction "to distinguish petitions with potential merit from those that are clearly meritless"].)
Finally, Lively writes: "[A]lthough [his] jury was not instructed with the natural and probable consequences theory vis-a-vis aiding and abetting, 'the natural and probable consequences of the act' were mentioned.... And, the prosecutor argued the 'natural and probable cause' of the death.... And the trial court found that, through 'some mental gymnastics,' it was possible that appellant had been convicted under a natural and probable consequences theory.... Given this evidence, and the unresolved question posed by the trial court, the issue of natural and probable consequences should be decided 'only after issuing an order to show cause and holding an evidentiary hearing.' "
The concept of natural and probable consequences connected with the definition of implied malice, however, "does not import into the crime of murder the case law relating to the distinct 'natural and probable consequences' doctrine developed in the context of aiding and abetting liability." (People v. Martinez (2007) 154 Cal.App.4th 314, 334; see also People v. Carney (2023) 14 Cal.5th 1130, 1146 [natural and probable consequences language in pattern murder instruction "does not concern the imputed malice theory of criminal liability that is part of the natural and probable consequences doctrine of accomplice liability affected by [section 1172.6]"].) Lively concedes that he was not tried as an accomplice and that the jury was "not instructed with the natural and probable consequences theory vis-a-vis aiding and abetting."
Accordingly, we find no error in the denial of Lively's petition for resentencing.
DISPOSITION
The order denying the petition for resentencing is affirmed.
WE CONCUR: BROWN, P. J., STREETER, J.