Opinion
B325850
07-24-2023
THE PEOPLE, Plaintiff and Respondent, v. DEMARIE MACKEY, Defendant and Appellant.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of Los Angeles County No. MA012106-01, Kathleen Blanchard, Judge. Affirmed.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
PERLUSS, P. J.
A jury in 1997 convicted DeMarie Mackey of the attempted willful, deliberate and premeditated murder of Yvonne Bicksler and several other felonies with true findings he had personally inflicted great bodily injury on the victim and had personally used a firearm when committing the offenses. The trial court (Judge Candace Beason) sentenced Mackey to an indeterminate state prison term of life plus 11 years.
On October 11, 2022 Mackey filed a petition for resentencing pursuant to Penal Code section 1172.6 (former section 1170.95). On October 25, 2022 the superior court (Judge Kathleen Blanchard) denied Mackey's petition, finding it was not facially sufficient requiring appointment of counsel and failed to establish a prima facie case for relief, noting the petition "complain[ed] about the sufficiency of evidence against him at trial, the jury instructions given, and his place of commitment."
Statutory references are to the Penal Code.
Judge Beason retired in 2014.
No arguable issues have been identified following review of the record by Mackey's appointed appellate counsel. We also have identified no arguable issues after our own independent review of the record and analysis of the contentions presented by Mackey in his supplemental brief. We affirm.
FACTUAL BACKGROUND
On March 24, 1996 Bicksler went into the connected garage of her home in Lancaster through an interior door. As she opened the garage door to go to her car, which was parked outside, two men entered the garage and demanded money. Bicksler said she had no money. One of the men fired his gun at Bicksler, hitting her on the right side of her lower back. The jury concluded Mackey was the individual who shot Bicksler and found him guilty of attempted premeditated murder (§§ 187, subd. (a), 664, subd. (a)), residential burglary (§ 459), attempted robbery (§§ 211, 664) and aggravated assault (§ 245, subd. (a)(2)), with true findings on the enhancement allegations that Mackey had personally used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury on Bicksler (§ 12022.7, subd. (a)). Mackey has insisted he was not a participant in the crime, was misidentified as a suspect by Bicksler and, in fact, was seven miles from her home babysitting when the incident occurred.
DISCUSSION
We appointed counsel to represent Mackey on appeal from the denial of his postjudgment petition. After reviewing the record, appointed counsel did not identify any arguable issues and so informed this court. Appointed counsel advised Mackey on June 7, 2023 that she was filing a brief stating she was unable to find arguable issues and that he could personally submit any contentions he believed the court should consider.
On July 3, 2023 we received a 28-page handwritten supplemental brief with multiple exhibits from Mackey in which he argued the superior court lacked jurisdiction to deny his postjudgment petition because it was decided in the Los Angeles Superior Court's North District (Lancaster), rather than the Northeast District (Alhambra) where he was tried and sentenced. Mackey also contends the trial record supported his allegation he was convicted of attempted premeditated murder based on a now-prohibited theory of imputed malice, thereby establishing a prima facie case for resentencing relief under section 1172.6. Finally, he argues his appellate counsel provided constitutionally ineffective assistance by filing a no-merit brief. None of these contentions has merit.
1. The Court's Jurisdiction
Under the ameliorative changes to the law relating to accomplice liability for murder effected by Senate Bill No. 1437 (Stats. 2018, ch. 1015), malice must be proved to convict a principal of murder except under the narrowed felony-murder rule set forth in revised section 189, subdivision (e), and may not be imputed based solely on an individual's participation in a crime (§ 188, subd. (a)(3)), thereby eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842843; see People v. Reyes (2023) 14 Cal.5th 981, 984). As amended by Senate Bill No. 775 (Stats. 2021, ch. 551, § 2), effective January 1, 2022, Senate Bill No. 1437's changes to the law of murder expressly apply to individuals convicted of attempted murder and voluntary manslaughter.
Section 1172.6 authorizes an individual convicted of attempted murder based on the natural and probable consequences doctrine or any other theory under which malice is imputed based solely on that person's participation in a crime to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not now be convicted of attempted murder. As Mackey recognizes, section 1172.6, subdivision (b)(1), provides the petition for resentencing "shall be filed with the court that sentenced the petitioner." But that provision also states, "If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition."
The procedures required by section 1172.6, subdivision (b)(1), were fully complied with in this case. The court that sentenced Mackey was the Los Angeles Superior Court, not one of its several districts. (See Cal. Const., art. VI, § 4 ["[i]n each county there is a superior court of one or more judges"]; In re Alberto (2002) 102 Cal.App.4th 421, 428 ["'[t]he Superior Court of Los Angeles County, though comprised of a number of judges, is a single court'"]; see also People v. Konow (2004) 32 Cal.4th 995, 1018 ["'jurisdiction is vested by the Constitution in the court and not in any particular judge or department thereof; and that whether sitting separately or together, the judges hold but one and the same court'"]; People v. The North River Ins. Co. (2020) 53 Cal.App.5th 559, 564 [same]; B.F. v. Superior Court (2012) 207 Cal.App.4th 621, 628 [same].)And the judge who sentenced Mackey retired years before the petition was filed and was not available to consider his petition. The designation of Judge Blanchard in Lancaster to rule on the petition was proper. The order denying the petition is not void for lack of jurisdiction.
The felony complaint in Mackey's case, filed June 12, 1996, states in its caption Municipal Court of Antelope Judicial District, County of Los Angeles. The information, filed 12 days later on June 24, 1996, accurately states Superior Court of the State of California for the County of Los Angeles. Judge Beason, who presided at Mackey's trial and sentenced him on June 16, 1997, was at the time a judge of the Los Angeles Superior Court.
2. Imputed Malice
In his supplemental letter brief Mackey generally asserts, without further discussion, that he made a prima facie showing of entitlement to resentencing relief. However, in his petition (but not his supplemental brief) Mackey acknowledged the trial court instructed the jury with CALJIC Nos. 3.31, 8.11, 8.66 and 8.67 and then argued, based on those instructions, "malice was imputed against defendant." Nothing in the instructions, let alone in the jury's findings that Mackey not only committed attempted premeditated murder but also personally used a firearm and inflicted great bodily injury on Bicksler, supports a prima facie showing of imputed malice. To the contrary, CALJIC No. 8.66 defining attempted murder requires proof of express malice; and CALJIC No. 8.67 defining an attempt to commit willful, deliberate and premeditated murder reinforces the requirement that the People prove express malice (a clear intent to kill). CALJIC No. 8.11 defines express and implied malice without any suggestion that malice may be imputed to the defendant, and CALJIC No. 3.11 instructed the jury that it needed to find there existed a union of act or conduct (firing the gun) and the requisite specific intent (express malice or intent to kill).
Although the superior court may not engage in judicial factfinding or make credibility decisions before issuing an order to show cause and conducting an evidentiary hearing pursuant to section 1172.6, subdivisions (c) and (d), in first determining whether the petitioner has carried the burden of making a prima facie showing of entitlement to relief, the superior court properly examines the record of conviction, "allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (People v. Lewis (2021) 11 Cal.5th 952, 971; accord, People v. Williams (2022) 86 Cal.App.5th 1244, 1251.) "[I]f the record, including the court's own documents, contain[s] facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner." (Lewis, at p. 971, internal quotation marks omitted.) The superior court here properly determined from the record of conviction that, as a matter of law, Mackey's conviction for attempted premeditated murder was not based on a theory of imputed malice.
To the extent the superior court may have erred in determining Mackey failed to carry his burden of making a prima facie case for relief without first appointing counsel, requiring the prosecutor to file a response to the petition and providing Mackey's appointed counsel with an opportunity to file a reply, as required by section 1172.6, subdivision (c), this state law procedural error was harmless given the jury's findings, as reflected in the record of conviction, which irrefutably established Mackey's ineligibility for relief as a matter of law. (See People v. Lewis, supra, 11 Cal.5th at pp. 957, 973-974; People v. Harden (2022) 81 Cal.App.5th 45, 56.)
3. Ineffective Assistance of Counsel
Counsel is not ineffective for failing to make an argument that wholly lacks merit. (See, e.g., People v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24; People v. Cudjo (1993) 6 Cal.4th 585, 616.) Similarly, counsel's good faith assessment that no arguable issue exists justifying an appeal from the denial of a petition under section 1172.6 at the prima facie stage cannot constitute constitutionally ineffective assistance of counsel because there is no constitutional right to counsel under section 1172.6, subdivision (c), and "the right to counsel at that point in the proceedings is purely statutory." (People v. Delgadillo (2022) 14 Cal.5th 216, 227.) Moreover, here, for the reasons stated, counsel's assessment that Mackey's contentions lacked any colorable merit was entirely correct.
Because no cognizable legal issues have been raised by Mackey's appellate counsel or by Mackey or identified in our independent review of the record, the order denying his petition for resentencing is affirmed. (See People v. Delgadillo, supra, 14 Cal.5th at pp. 231-232; see also People v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order is affirmed.
We concur: SEGAL, J., FEUER, J.