Opinion
G062196
12-18-2023
THE PEOPLE, Plaintiff and Respondent, v. LEONARD OWEN MUNDY, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 96WF0968, Michael A. Leversen, Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
GOETHALS, J.
In 1998, a jury convicted Leonard Owen Mundy of first degree murder. The trial court sentenced him to life in prison without the possibility of parole and enhanced the sentence by 10 years because Mundy committed the murder for financial gain while lying in wait with a gun. We affirmed his conviction in 2000. (People v. Mundy (Sept. 28, 2000, G023870) [nonpub. opn.].)
In 2022, Mundy filed a petition for resentencing under Penal Code section 1172.6 (formerly § 1170.95), asserting he could not presently be convicted of murder under sections 188 and 189, which were amended in 2019 to limit the scope of the traditional felony-murder rule and eliminate the natural and probable consequences theory for murder. The People opposed Mundy's petition, asserting he was not convicted under a felony murder theory, the natural and probable consequences doctrine, or any prohibited theory.
All statutory references are to this code.
Based on its review of the jury instructions and verdict forms, the trial court denied Mundy's resentencing petition, finding Mundy "could only have been convicted under a theory of express malice." In its statement of decision, the court noted it did not engage in factfinding, review the facts underlying the conviction, or consider the factual summary in the prior appellate opinion. Mundy now appeals from the court's denial of his petition.
We appointed counsel to represent Mundy on appeal. Counsel informed us he reviewed Mundy's petition for resentencing and the appellate record, consulted with staff counsel at Appellate Defenders, Inc., and found no arguable issues; as a result, he filed a brief pursuant to the procedures set forth in People v. Delgadillo (2022) 14 Cal.5th 216 (and consistent with People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738). While not arguing against his client, counsel set forth the facts of the case and asked this court to conduct its own independent review of the appellate record, which we have done. Counsel also advised Mundy of his right to file his own written argument; Mundy has not done so.
We have exercised our discretion to review the record, although the Supreme Court has made clear we are not required to do so in post-judgment appeals (People v. Delgadillo, supra, 14 Cal.5th 216). Like counsel, we have been unable to find any arguable appellate issue. We therefore affirm.
FACTS
We extract the following facts from our prior opinion.
One morning in June 1995, a blonde woman went jogging near a park in Fountain Valley, and a man pulled a gun out of a bag and shot her. She died at the scene. Eyewitnesses later identified Mundy as the killer. At trial, the People presented evidence that someone had hired Mundy to kill a different blonde woman who often jogged through that same park. (People v. Mundy, supra, G023870.)
The jury convicted Mundy of first degree murder (§ 187, subd. (a)), and found he committed the murder for financial gain (§ 190.2, subd. (a)(1)) by means of lying in wait (§ 190.2, subd. (a)(15)) with a handgun (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)). The trial court sentenced him to life in prison without the possibility of parole; the court enhanced the sentence by 10 years because Mundy committed the murder for financial gain while lying in wait with a gun. (People v. Mundy, supra, G023870.)
DISCUSSION
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.), which limited the scope of the felony-murder rule and eliminated natural and probable consequences liability for murder as it applies to aiding and abetting. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) The bill's stated purpose was "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." (Stats. 2018, ch. 1015, § 1, subd. (f).) In addition to amending the Penal Code sections on felony murder (see § 189, subd. (e)) and natural consequences (see § 188, subd. (a)(3)), the bill also added section 1170.95 (later renumbered § 1172.6), which created a procedure through which a "person convicted of felony murder or murder under the natural and probable consequences doctrine" can petition for relief. (§ 1172.6, subd. (a).)
Mundy filed such a petition. Pursuant to section 1172.6, he was required to make a prima facie showing in the trial court that he is entitled to relief. (Lewis, supra, 11 Cal.5th at p. 960.) The Supreme Court observed in Lewis that "[t]he record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, at p. 971.)
Here, after following the procedure required by the statute and Lewis, the trial court found Mundy was ineligible for relief as a matter of law. The court reasoned "[t]he jury instructions and verdict forms alone clearly establish [Mundy's] ineligibility [because the] jury was not instructed as to aiding and abetting, natural and probable consequences, uncharged conspiracy, felony murder, or any other theory that would have allowed the jury to impute malice to [Mundy] based on his participation in another offense.... [T]he jury was only instructed as to malice aforethought (CALJIC 8.11), deliberate and premeditated murder (CALJIC 8.20), special circumstances (CALJIC 8.81.1, 8.81.15), alibi (CALJIC 4.50), unjoined perpetrators (CALJCIC 2.11.5), and personal use of a firearm (CALJIC 17.19)." The court further noted that CALJIC 8.11 (defining malice aforethought) has been modified "to omit any reference to implied malice. Thus, [Mundy] could only have been convicted under a theory of express malice," and "the jury necessarily could only have found [Mundy] guilty of first-degree murder by finding that [he] acted with specific intent to kill."
We agree with the trial court's analysis. Given the instructions given to the jury at trial, the jury could not have convicted Mundy on any theory that would make him eligible for relief under section 1172.6. Further, the fact that the jury found the special circumstances and firearm enhancements true reflect the fact that the jury found Mundy was the actual killer who acted with specific intent to kill.
Because the record of conviction irrefutably establishes Mundy was convicted of murder as the actual killer, his conviction survives the amendments to sections 188 and 189. After reviewing the entire record in this case, we have found no other arguable appellate issues.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: O'LEARY, P. J., MOTOIKE, J.