Opinion
F084862
05-22-2023
THE PEOPLE, Plaintiff and Respondent, v. HOUSTON EUGENE MATHEWS, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. No. SC073073A Chad A. Louie, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 1998, appellant and defendant Houston Eugene Mathews (appellant) was convicted of first degree murder, with a drive-by shooting special circumstance, and attempted murder. He was sentenced to life in prison without the possibility of parole (LWOP), and his convictions were affirmed on direct appeal.
In 2021, appellant filed a petition for resentencing of his murder conviction pursuant to former section 1170.95 of the Penal Code. The trial court denied the petition and found he was ineligible as a matter of law. This court affirmed the trial court's ruling based on the jury instructions that showed appellant was convicted of first degree murder as a direct aider and abettor, with an intent to kill, and not under the felony-murder rule or the natural and probable consequences doctrine.
All further statutory citations are to the Penal Code unless otherwise indicated. Appellant filed his first and second petitions under the former version of section 1170.95. The statute was substantively amended, effective on January 1, 2022, and renumbered as section 1172.6 without further changes on June 30, 2022. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3; Stats. 2022, ch. 58 (Assem. Bill. 200), § 10, eff. June 30, 2022.)
In 2022, appellant filed a second petition for resentencing of his murder and attempted murder convictions under the amendments to section 1172.6. The trial court acknowledged the amended statute now allowed a petitioner to challenge his conviction for attempted murder, and denied the petition based on its prior order that was affirmed on appeal.
On appeal from the denial of his second petition, appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and People v. Wende (1979) 25 Cal.3d 436.) However, counsel's Delgadillo/Wende brief further stated appellant requested counsel to raise specific issues for this court to address about the denial of his second petition. We will address the issues that appellant raised through his counsel and affirm.
This court granted appellant's request to take judicial notice of the record and our nonpublished opinion in People v. Mathews (June 1, 2022, F082563) (Mathews II), that affirmed the denial of his first petition for resentencing. The record in Mathews II includes the jury instructions from appellant's trial and this court's opinion that affirmed appellant's convictions on direct appeal (People v. Mathews (Feb. 4, 2000, F031307) [nonpub. opn.] (Mathews I)). In reviewing a section 1172.6 petition, the court may rely on "the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3); People v. Clements (2022) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 406, fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in fact finding at the prima facie stage. (People v. Clements, supra, 75 Cal.App.5th at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).)
The Charges
On February 27, 1998, an information was filed in Superior Court of Kern County charging appellant Houston Eugene Mathews with count 1, first degree murder of Tyrone Murray on February 6, 1997 (§ 187, subd. (a)), with the special circumstance that the murder was intentional and perpetrated by means of discharge of a firearm from a motor vehicle at another person with the intent to inflict death (§ 190.2, subd. (a)(21)); and count 2, attempted murder of James Belk on February 9, 1997 (§§ 664, 187, subd. (a)).
As to counts 1 and 2, it was alleged a principal in both offenses was armed with a firearm, a handgun (§ 12022, subd. (a)(1)), and the offenses were committed at the direction of, in association with, or for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). No other defendants were charged in the information.
The Jury Instructions
In or about May 1998, appellant's jury trial was held. He was tried by himself.
The jury was instructed on general principles of aiding and abetting. "Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. [¶] Each principal, regardless of the extent or manner of participation, is equally guilty. [¶] Principals include, one, those who directly and actively commit or attempt to commit the act constituting the crime, or two, those who aid and abet the commission or attempted commission of the crime."
"A person aids and abets the commission or attempted commission of a crime when he, one, with knowledge of the unlawful purpose of the perpetrator and, two, with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and three, by act or advice aids, promotes, encourages or instigates the commission of a crime." (Italics added.)
As to count 1, murder, the jury was instructed that every person who unlawfully kills a human being with "malice aforethought or during the commission of a driveby shooting is guilty of the crime of murder.... [¶] In order to prove this crime, each of the following three elements must be proved: (1) A human being was killed; (2) The killing was unlawful; and (3) The killing was done with malice aforethought or occurred during the commission of a driveby shooting."
The jury was instructed on express and implied malice, first degree murder, premeditation and deliberation, and that "[m]urder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death, is also murder of the first degree." The jury was also constructed on second degree murder. (Italics added.)
Also as to count 1, the jury was instructed that "to find that the special circumstance referred to in these instructions as murder by means of intentional discharge of a firearm from a motor vehicle is true, it must be proved (1) the murder was perpetrated by means of discharging a firearm from a motor vehicle; (2) the perpetrator intentionally discharged the firearm at another person or persons outside the vehicle, and; (3) the perpetrator at the time he discharged the firearm intended to inflict death. (Italics added.) "You cannot find the special circumstance alleged to be true unless you are satisfied beyond a reasonable doubt that the defendant, with the intent to kill, aided, abetted or assisted any actor in the commission of the murder in the first degree which resulted in the death of a human being; namely, Tyrone Murray." (Italics added.)
As to count 2, attempted murder, the jury was instructed that "each of the following two elements must be proved: (1) A direct but ineffectual act was done by one person towards killing another human being, and (2) The person committing the act harbored express malice aforethought; namely, a specific intent to kill unlawfully another human being." (Italics added.) "Mere preparation, which may consist of planning the killing or devising, obtaining or arranging the means or the commission is not sufficient to constitute an attempt. [¶] However, acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain unambiguous intent to kill." (Italics added.)
Convictions and Sentence
On May 15, 1998, appellant was convicted of all counts, and the special circumstance and enhancements were found true.
On July 15, 1998, the court sentenced appellant to the upper term of nine years for count 2, attempted murder, plus consecutive terms of three years for the gang enhancement, one year for the firearm enhancement, and three years for a great bodily injury enhancement that was never alleged or found true. As to count 1, first degree murder with the special circumstance, appellant was sentenced to life without parole, plus three years for the gang enhancement and one year for the firearm enhancement. Appellant was ordered to serve the determinate term first, followed by the indeterminate LWOP sentence.
On direct appeal, this court ordered the determinate term imposed for great bodily injury enhancement as to count 2 stricken, because the jury was not instructed or given a verdict form for that enhancement, the court did not find it true, and appellant did not admit it. We modified appellant's determinate term for count 2 and the attached enhancements to 13 years.
Direct Appeal
On February 4, 2000, this court filed the nonpublished opinion that corrected appellant's sentence and otherwise affirmed the judgment. (Mathews II, supra, F082563.)
Appellant's primary argument was that "the People failed to use reasonable care to assure the presence of a key witness to their case. After two criminal complaints against [appellant] had been dismissed, the People filed a third complaint against him.
[Appellant argued] this filing violated ... section 1387.1 which does not permit the refiling of charges 'where the conduct of the prosecution amounted to bad faith.' "
To address these contentions, this court focused on the procedural background of the case and gave a brief factual statement about the underlying convictions.
"[Appellant] was convicted in count one of the drive-by shooting and murder of Tyrone Murray on February 6, 1997. [Appellant] told Michael Charles, the missing witness, that he killed Murray. During his testimony, Charles denied that he told investigating officers about [appellant's] admission but Charles was impeached with tape recorded statements he had made to investigating officers." (Mathews II, supra, F082563.)
This court held appellant "failed to demonstrate that the actions of the prosecution here rise to the level of bad faith. [Appellant] has also failed to show that the prosecution here was aware of Charles' unreliability which is in contrast to what the prosecution knew in [other cases]. The trial court did not abuse its discretion when it denied [appellant's] motion to dismiss the third criminal complaint." (Mathews II, supra, F082563.) This court also rejected appellant's contention that the trial court erroneously denied his motion for information about the jurors who heard his case. (Ibid.)
APPELLANT'S FIRST PETITION FOR RESENTENCING
On February 4, 2019, appellant filed a petition in the trial court for resentencing of his murder conviction pursuant to former section 1170.95 and requested appointment of counsel.
Appellant's supporting declaration consisted of a preprinted form where he checked boxes that stated a complaint, information, or indictment was filed against him that allowed him to be prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine; he was convicted of first or second degree murder at trial; and he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019; he was not the actual killer, did not act with an intent to kill, and was not a major participant in the underlying felony or did not act with reckless indifference to human life in the course of the crime, and the victim was not a peace officer in the performance of his or her duties; he was convicted of second degree murder under the natural and probable consequences doctrine or the felony-murder rule, and could not now be convicted of second degree murder after the changes in the law; and there was a prior determination by a court or jury that he was not a major participant and/or did not act with reckless indifference to human life under section 190.2, subdivision (d).
The court appointed counsel to represent appellant.
The People's Opposition
The People filed opposition and argued appellant was ineligible for resentencing because he was not convicted of felony murder or murder under a natural and probable consequences theory, but rather under a direct aiding and abetting theory. Additionally, the People asserted the evidence showed that appellant aided and abetted in the murder with intent to kill.
The People also moved to dismiss the petition and argued Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was unconstitutional. The court denied the motion.
The People's opposition contained a brief factual summary and attached this court's opinion in appellant's direct appeal as a supporting exhibit, noting this court's opinion "did not contain a statement of facts regarding the trial testimony." The People had requested the trial transcripts, intended to file them with the trial court, and requested the trial court take judicial notice of the transcripts to resolve appellant's petition.
Appellant's Reply
Appellant filed a reply and argued the court could not deny the petition based on the "unreliable recitation of 'facts'" contained in the People's response. He asserted he made a prima facie showing of eligibility for resentencing and was entitled to an evidentiary hearing.
The Trial Record
On February 16, 2021, the reporter's transcripts from appellant's jury trial were filed with the trial court.
The Trial Court's Denial of the First Petition
On March 18, 2021, the trial court filed a minute order that stated it had received and considered the parties' pleadings, and summarily denied the petition without providing a statement of reasons.
Appellant's First Appeal
Appellant filed an appeal from the denial of his first petition. This court granted the People's motion to augment the appellate record to include the transcripts from appellant's jury trial.
On June 1, 2022, this court filed the nonpublished opinion that affirmed the trial court's denial of his first petition, based on the amendments to former section 1170.95, that became effective on January 1, 2022. We held that the trial court was required to provide a statement of reasons when it denied the petition without issuing an order to show cause and failed to do so. (Mathews II, supra, F082563.)
We further held the court's failure to comply with the statute was not prejudicial because the record of conviction showed appellant was ineligible for resentencing as a matter of law, based on the jury instructions contained in the record of conviction.
"The jury was instructed on general principles of aiding and abetting, and specifically that a person aids and abets the commission of a crime if he acts 'with the intent or purpose of committing or encouraging or facilitating the commission of the crime.'
"The jury also was instructed on the elements of both first and second degree murder with malice aforethought. In addition to general malice murder, the jury was instructed on murder occurring 'during the commission of a driveby shooting.' In this regard, the jury was instructed that '[m]urder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death, is also murder of the first degree.'
"Neither the aiding and abetting instructions nor the murder instructions permitted the jury to find petitioner guilty of murder under the felony-murder doctrine, a natural and probable consequences theory, or any other imputed malice theory.
"Likewise, the prosecution argued to the jury that petitioner had committed murder in the first degree, either because petitioner premeditated the murder, or because he committed the murder by way of a drive-by shooting and with the specific intent to kill. The prosecution did not argue petitioner was guilty of felony murder or murder under a natural and probable consequences or other imputed malice theory.
"No imputed malice theories were presented to the jury and there is therefore no possibility the jury found petitioner guilty under such theories. Because petitioner was not convicted of felony murder or murder under a natural and probable consequences or other imputed malice theory, he is ineligible for resentencing as a matter of law." (Mathews II, supra, F082563, italics added.)
As a separate matter, we held appellant was also ineligible as a matter of law based on the jury's findings on the drive-by-shooting special circumstance.
"Pursuant to [former] section 1170.95, a petitioner is ineligible for resentencing if he or she was the actual killer, acted with the intent to kill or malice aforethought, or was a major participant in the underlying felony who acted with reckless indifference to human life. [Citations.] Here, the jury found true a special circumstance pursuant to section 190.2, subdivision (a)(21), which imposes a sentence of death or life without the possibility of parole for a murder that was 'intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person ... outside the vehicle with intent to inflict death. [Citation.] In finding this special circumstance true, the jury necessarily found [appellant] acted with intent to kill, whether as the actual killer or an aider and abettor to the murder. [Citations.] The true finding on the special circumstance therefore establishes the jury made the findings necessary to sustain a murder conviction under the law, as amended by Senate Bill . 1437 [citation], and on this additional basis, petitioner is ineligible for resentencing as a matter of law." (Mathews II, supra, F082563, italics added.)
We affirmed the trial court's order that denied appellant's petition for resentencing on his first degree murder conviction. We further noted that at the time appellant filed his petition, former section 1170.95 did not expressly permit a defendant to file a petition for resentencing on attempted murder convictions. The statute had been amended to" '[c]larif[y] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.' [Citations.] [Appellant] did not seek resentencing on his attempted murder conviction in the trial court and we do not address his eligibility for resentencing on this count. [He] retains any remedies available to him in the trial court. (Mathews II, supra, F082563.)
APPELLANT'S SECOND PETITION
The instant appeal is from appellant's second petition for resentencing on his convictions for murder and attempted murder, filed pursuant to section 1172.6 on August 17, 2022. Appellant requested appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where he checked boxes that he was eligible for resentencing because (1) a complaint, information, or indictment was filed that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could have been convicted of murder or manslaughter; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
The court appointed counsel to represent appellant.
The Court's Denial of the Petition
On August 25, 2022, the trial court held a hearing on appellant's second petition, and asked defense counsel about the status of the case. Counsel stated appellant's previous petition was denied and remittitur had issued, and this matter was appellant's second petition.
The court asked whether the second petition was duplicative. Defense counsel said appellant wanted "to have it heard again." The court asked if there had been any change in circumstances, and counsel said no. The prosecutor submitted the matter.
The court stated: "Given there is no change in circumstances, this Petition is already been rule on and affirmed by the Court of Appeal. ... The same Petition that is filed now and is on calendar today has previously been heard and ruled on and affirmed."
Defense counsel stated: "I suspect the reason this was filed is because of [Senate Bill No.] 775 [(2020-2021 Reg. Sess.)], which would allow the issue regarding attempted murder...." The court acknowledged appellant was also convicted of attempted murder, but again denied the petition.
On August 30, 2022, appellant filed a notice of appeal from the court's denial of his second petition.
DISCUSSION
I. Delgadillo/Wende
In Delgadillo, the court held a Wende analysis is not applicable to a trial court's order that denies a petition for postconviction relief under section 1172.6. (Delgadillo, supra, 14 Cal.5th at p. 222.) Delgadillo held that instead of using the process outlined in Wende, appointed counsel and the appellate court should do the following: "When appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel's brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter." (Delgadillo, at pp. 231-232.)
"If the defendant 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.. If the defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss the appeal as abandoned. [Citation.] . While it is wholly within the court's discretion, the Court of Appeal is not barred from conducting its own independent review of the record in any individual section 1172.6 appeal." (Delgadillo, supra, 14 Cal.5th at p. 232.)
As noted above, appellate counsel filed a brief with this court pursuant to both Delgadillo and Wende. The brief also included counsel's declaration that appellant was advised he could file his own brief with this court. At the conclusion of his Delgadillo/Wende brief, however, counsel wrote that "appellant personally requests this Court review two issues." These issues were: (1) "Did the resentencing court err in denying appellant's second resentencing petition, which included both the murder and attempted murder convictions, based on its belief that relief was precluded as either a successive petition, or by application of issue preclusion or law of the case, when the first petition only concerned the murder conviction," and (2) "Was the resentencing court's statement of reasons ('no change in circumstances') sufficient under ... section 1172.6."
After receiving counsel's Delgadillo/Wende brief, this court sent an order to appellant that stated his appellate counsel filed a brief under Wende that indicated no arguable issues had been identified for appeal; previously, when an appellant filed an appeal from the denial of a section 1172.6 petition, and counsel filed a Wende brief, this court performed an independent review of the record to determine whether any error occurred; the California Supreme Court determined in Delgadillo that independent Wende review is not required for appeals from the denial of section 1172.6 petitions; in accordance with the procedures set forth in Delgadillo, appellant had 30 days in which to file a supplemental brief or letter raising any arguable issues he wanted this court to consider; and if we did not receive a letter or brief within that 30-day period, this court may dismiss the appeal as abandoned. Appellant did not file a supplemental brief.
While appellant did not file a supplemental brief, we decline to dismiss the instant appeal given the statements in counsel's brief that appellant requested this court address certain issues.
II. Senate Bill 1437 and Section 1172.6
"Effective January 1, 2019, Senate Bill ... 1437 ... amended the felony-murder rule by adding section 189, subdivision (e). [Citation.] It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. [Citation.] The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.'" (People v. Harden (2022) 81 Cal.App.5th 45, 50-51; People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).)
"Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended," initially codified in former section 1170.95. (Strong, supra, 13 Cal.5th at p. 708, fn. omitted; Lewis, supra, 11 Cal.5th at p. 959.) The initial version of former section 1170.95 permitted "a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by Senate Bill ... 1437." (People v. Flores (2020) 44 Cal.App.5th 985, 992.)
Effective January 1, 2022, Senate Bill No. 775 (2020-2021 Reg. Sess.) made substantive amendments to former section 1170.95 that were consistent with People v. Lewis, supra, 11 Cal.5th 952, and also" '[c]larifie[d] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.'" (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)
On June 30, 2022, the statute was renumbered as section 1172.6 without further substantive changes. (People v. Saibu, supra, 81 Cal.App.5th at p. 714.)
Section 1172.6, subdivision (a) thus states:
"(a) A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:
"(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine.
"(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder.
"(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)
While not applicable herein, section 189 was amended to allow for felonymurder liability where the victim is a peace officer. (§ 189, subd. (f).)
The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).) After service of the petition, the prosecutor shall file and serve a response. The petitioner may file and serve a reply after the response is served. (Id., subd. (c).)
"After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1172.6, subd. (c).)
The prima facie inquiry under section 1172.6, subdivision (c) is "limited." (Lewis, supra, 11 Cal.5th at p. 971.) The court"' "takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citation.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if 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." '" (Ibid.)
If an order to show cause is issued, "the court shall hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence..." (§ 1172.6, subd. (d)(1).)
"At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens..." (§ 1172.6, subd. (d)(3).)
"If such evidence may not be considered at an evidentiary hearing to determine a petitioner's ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner's ineligibility for resentencing" in determining whether he made a prima facie case for relief. (People v. Flores (2022) 76 Cal.App.5th 974, 988, fn. omitted.)
III. Successive Petitions
Appellant's first question posed through his counsel was whether the trial court erroneously denied his second petition "based on its belief that relief was precluded as either a successive petition, or by application of issue preclusion or law of the case, when the first petition only concerned the murder conviction."
A petitioner may file a successive petition under section 1172.6 if it is based on new legal authority. (People v. Farfan (2021) 71 Cal.App.5th 942, 946-947, 950-951.) Farfan held the defendant in that case could file a successive petition because the California Supreme Court's ruling in Lewis and other published cases demonstrated the "still-evolving state of [former] section 1170.95 jurisprudence" such that a second petition would not be barred by collateral estoppel. (Farfan, at p. 950.) While Farfan held the defendant in that case could file a second petition, it also held the defendant was still ineligible for relief as a matter of law based upon the jury's findings. (Id. at p. 947.)
Appellant was convicted of first degree murder and attempted murder. When he filed his first petition, former section 1170.95 only permitted a defendant to file a petition for resentencing if convicted of murder based upon felony murder or the natural and probable consequences doctrine. As of January 1, 2022, the statute was amended to permit a petitioner to request resentencing if he was convicted of attempted murder based on a theory of imputed malice.
Appellant's second petition was filed in 2022 and was based on new legal authority that was not addressed at the time of his first petition or when this court affirmed the denial of his first petition. He was thus entitled to file a successive petition based on the statutory amendments to section 1172.6 that were not effective at the time of his first petition.
IV. Appellant is Ineligible for Relief as a Matter of Law
Appellant's second question, again posed through appellate counsel, was whether the trial court's statement of reasons was sufficient when it denied his second petition.
When appellant filed his second petition in 2022, the trial court complied with section 1172.6 because it appointed counsel, conducted a hearing on the petition, and stated reasons. In stating the reasons as to why it denied the petition without issuing an order to show cause, the court apparently presumed any arguments based upon appellant's conviction for attempted murder had already been resolved in the proceedings on his first petition.
The court's presumption was erroneous. When this court affirmed the denial of appellant's first petition, it specifically stated that it was only addressing the prima facie question as to his conviction for first degree murder and did not address his conviction for attempted murder.
To demonstrate prejudice from the denial of a section 1172.6 petition before the issuance of an order to show cause, appellant must show it is reasonably probable that, absent the error, his petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; People v. Watson (1956) 46 Cal.2d 818, 836.)
In determining whether a petitioner made a prima facie case for relief, the court may review the record of conviction that allows the court "to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that ... culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process." (Lewis, supra, 11 Cal.5th at pp. 971-972 & fn. 6.)
As explained above, the record and opinion from a petitioner's direct appeal are part of the record of conviction. (Lewis, supra, 11 Cal.5th at p. 972.)
The jury instructions are part of the record of conviction and may be reviewed to make the prima facie determination. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251-1255; People v. Offley (2020) 48 Cal.App.5th 588, 599.)
"If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Strong, supra, 13 Cal.5th at p. 708.)
First Degree Murder with the Special Circumstance
We previously held that appellant's first petition for resentencing on his first degree murder conviction was correctly denied because he was convicted as a direct aider and abettor who acted with the intent to kill. In addition, the instructions on the special circumstance expressly required the jury to find he had the intent to kill. There have been no changes in law to affect this court's prior conclusions as to his murder conviction.
Attempted Murder
As to appellant's conviction for attempted murder, "[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Booker (2011) 51 Cal.4th 141, 177178; People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) "Intent to unlawfully kill and express malice are, in essence, 'one and the same.'" (People v. Smith (2005) 37 Cal.4th 733, 739.) Thus, while a murder may be premised on a conscious disregard for life, attempted murder requires the specific intent to kill. (Ibid.)
The jury was correctly instructed that to find appellant guilty of attempted murder, it had to find he acted with express malice, meaning the intent to kill. The jury was not instructed on any theories of imputed malice for attempted murder. Thus, even though section 1172.6 was amended to permit a petition for resentencing of a conviction for attempted murder, the record of conviction shows appellant was ineligible for resentencing as a matter of law. (People v. Coley (2022) 77 Cal.App.5th 539, 545-547.)
Principals/Aiding and Abetting
Finally, as to counts 1 and 2, we note the jury was instructed on principals and aiders and abettors: "Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. [¶] Each principal, regardless of the extent or manner of participation, is equally guilty. [¶] Principals include, one, those who directly and actively commit or attempt to commit the act constituting the crime, or two, those who aid and abet the commission or attempted commission of the crime." (Italics added.)
While this instruction used the phrase "equally guilty," the California Supreme Court has held that such language does not permit a jury to convict an aider and abettor of first degree murder based on the perpetrator's culpability without considering the aider and abettor's own mental state. (People v. Johnson (2016) 62 Cal.4th 600, 638-641.) Johnson held that where the jury is also instructed with CALCRIM No. 401, setting forth the requirements for establishing the aider and abettor's own intent, "there was no reasonable likelihood the jurors would have understood the 'equally guilty' language [in CALCRIM former No. 400] to allow them to base defendant's liability for first degree murder on the mental state of the actual shooter, rather than on defendant's own mental state in aiding and abetting the killing." (People v. Johnson, at p. 641; People v. Estrada (2022) 77 Cal.App.5th 941, 947.)
As in Johnson, the jury in this case also received CALCRIM No. 401: "A person aids and abets the commission or attempted commission of a crime when he, one, with knowledge of the unlawful purpose of the perpetrator and, two, with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and three, by act or advice aids, promotes, encourages or instigates the commission of a crime." (Italics added.)
Appellant is, thus, ineligible for resentencing as a matter of law because he was not convicted under any theories of imputed malice.
DISPOSITION
The court's order of August 25, 2022, denying appellant's second petition, is affirmed.
[*] Before Poochigian, Acting P. J., Smith, J. and Snauffer, J.