Opinion
C099117
09-17-2024
THE PEOPLE, Plaintiff and Respondent, v. LASCHELL GENISE NELSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. Nos. STKCRFE20100004450, SC04989A)
FEINBERG J.
After an evidentiary hearing, the trial court denied defendant Laschell Genise Nelson's petition for resentencing under Penal Code section 1172.6, finding the prosecution proved beyond a reasonable doubt that she was guilty of murder on still-valid theories. Nelson's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216, asking this court to independently review the record and determine if any arguable errors would result in a disposition more favorable to Nelson. Nelson filed a supplemental brief asking this court to review and apply "any law" that would provide relief and citing several legislative enactments without discussion. We have considered her supplemental brief and affirm.
Further undesignated statutory references are to the Penal Code. Nelson originally filed her petition under former section 1170.95, which was amended by Senate Bill No. 775 (2021-2022 Reg. Sess.), effective January 1, 2022 (Stats. 2021, ch. 551, § 2), and then renumbered to section 1172.6 effective June 30, 2022. (See Stats. 2022, ch. 58, § 10.) For clarity, we refer to section 1172.6 throughout this opinion.
BACKGROUND
In 1988, Nelson pleaded no contest to second degree murder and was sentenced to an indeterminate term of 15 years to life in state prison. (People v. Nelson (Apr. 15, 2021, C090764) [nonpub. opn.].) She stipulated to the preliminary hearing transcript as the factual basis for her plea. (Ibid.) Nothing in the record shows she appealed the judgment.
In September 2019, Nelson filed a petition for resentencing under section 1172.6. Based on the preliminary hearing transcript, the trial court summarily denied the petition at the prima facie stage without appointing counsel or obtaining briefing from the parties. Nelson appealed, and the parties agreed, as did we, that reversal and remand for further proceedings under section 1172.6 was required. (People v. Nelson, supra, C090764.)
Following issuance of the remittitur, the People filed an informal response to the petition. They argued that Nelson did not qualify for relief because she aided and abetted the murder and was a major participant who acted with reckless indifference to human life under People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522.
Our Supreme Court explained in Banks that, when determining whether a defendant was a "major participant" in a felony murder, the jury may consider the defendant's role in planning the criminal enterprise that led to death; the defendant's role in supplying or using weapons; his or her awareness of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants; whether the defendant was present at the scene of the killing, in a position to facilitate or prevent the actual murder; whether his or her own actions or inactions played a particular role in the death; and what the defendant did after lethal force was used. (People v. Banks, supra, 61 Cal.4th at p. 803.) "No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major.'" (Ibid.) When deciding whether a defendant acted with reckless indifference to human life, the jury may similarly consider the use and number of weapons and the defendant's knowledge of them; the defendant's physical presence at the scene of the killing and opportunities to stop the crime or aid the victim; the duration of the felony; the defendant's knowledge that his or her criminal partner was likely to kill; and the defendant's effort to minimize the risk of violence during the felony. (People v. Clark, supra, 63 Cal.4th at pp. 618-623.)
The trial court issued an order to show cause. At an evidentiary hearing in July 2023, the prosecution introduced without objection the preliminary hearing transcript to which Nelson had stipulated as the factual basis for her plea as well as transcripts from several parole suitability hearings.
According to the preliminary hearing evidence, one night in July 1987, Nelson and codefendant Roy Roach were drinking and hanging out with two others. Roach was carrying a gun. Nelson had come up with a plan by which she and Roach would rob the victim at his home. Nelson knew the victim because she sometimes stayed at his house and had sex with him in exchange for cocaine. Nelson planned to leave the side door unlocked so Roach could enter the victim's home while he was distracted having sex with her and steal money she had seen in the victim's wallet.
The group dropped Nelson off near the victim's house, and she told Roach to follow her in about 15 minutes, which he did. Nelson left the side door unlocked as planned, and while she was having sex with the victim, Roach entered the home and hit him on the head. Nelson got dressed and left; she later heard the victim yell for help and then a gunshot.
Nelson returned to the car with a bloody shirt. She stated that "he had to be shot," that she had "hit him in the head with a bat and [did not] care if he dies," and that she "hope[s] he dies, because too many people [she had] loved" had died. Roach came back to the car minutes later with a small rug, telling the others that "he is dead" and that "[he] had to shoot" the victim to protect himself. Roach then went back to the house through an alleyway to ensure that no fingerprints were left inside. He returned to the car with a baseball bat, which appeared to have blood on it. He also had a different gun with him than the one he had earlier.
The group drove to a field where Roach disposed of the rug and the bat. At some point, Nelson confessed to shooting the victim, but then Roach claimed he was the killer.
When police responded to the victim's home, they found two interior bedroom doors that were damaged and appeared to have been forced open. The victim was found dead in a third bedroom that was in disarray; he was naked. The victim suffered blunt force trauma injuries as well as a gunshot wound to the head. The victim's wallet was missing.
During her later parole hearings, Nelson admitted that she was the "mastermind" behind the plan to rob the victim by enticing him to have sex with her while Roach stole his money. She admitted that she hit the victim on the head with a baseball bat and that she and Roach had split the money after robbing and killing the victim. She denied saying she wanted him to die.
Based on the preliminary hearing evidence and Nelson's parole hearing admissions, the prosecution argued that Nelson harbored the specific intent to kill when she aided and abetted Roach in the robbery and murder and that she was a major participant who acted with reckless indifference to human life under Banks and Clark. Defense counsel argued that Nelson lacked the intent to kill, including because she was young and suffering from drug addiction at the time of the offense. Counsel also asserted that, while Nelson struck the victim on the head with a bat, she did not carry out the fatal shooting and a single blow with a bat did not necessarily show an intent to kill.
The trial court denied the petition, finding that the prosecution had proven beyond a reasonable doubt that Nelson aided and abetted with the specific intent to kill and that she was a major participant who acted with reckless indifference to human life under Banks and Clark. The court emphasized the evidence showing that Nelson had planned and facilitated the robbery with someone she knew was armed, that she was present at the scene when the victim was killed, and that she did nothing to help the victim. Rather, she had sex with the victim to distract him so that Roach could steal his money, which they later split. In addition, Nelson herself struck the victim on the head with a bat, a lethal weapon-an action the court inferred was to stop him from later identifying her as the perpetrator.
Nelson timely appealed.
DISCUSSION
Under People v. Delgadillo, supra, 14 Cal.5th 216, when appointed counsel finds no arguable error and the defendant subsequently files a supplemental brief, an appellate court must evaluate the specific arguments presented in that brief and issue a written opinion. (Id. at p. 232.) Nelson's supplemental brief asks this court to "apply any law" that would provide a basis for relief and specifically cites Assembly Bills Nos. 1540, 1308, and 965; Senate Bill No. 775; and the Racial Justice Act. Because the brief provides no factual or legal analysis to support these claims, we are not required to address them (In re S.C. (2006) 138 Cal.App.4th 396, 408); but in any event, we conclude that the cited provisions provide no ground for reversal.
Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, §§ 1-7) took effect on January 1, 2022, and moved the recall and resentencing provisions of former section 1170 to section 1170.03, later renumbered to section 1172.1 (Stats. 2022, ch. 58, § 9), and made several clarifications of the standards and factors a trial court must apply when considering a recommendation from the California Department of Corrections and Rehabilitation or other officials to recall and resentence a defendant. No recommendation for recall and resentencing is at issue here.
Both Assembly Bills Nos. 1308 and 965 amended section 3051, which addresses youth offender parole hearings. As originally enacted, youth offender parole hearings were available for various offenders who committed a controlling offense when they were under the age of 18. (Stats. 2013, ch. 312, § 4.) Effective January 1, 2018, Assembly Bill No. 1308 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 675, § 1) amended section 3051, subdivision (b)(2) to provide that a person who was convicted of a controlling offense that was committed when the person was 25 years of age or younger and for which the sentence is a life term less than 25 years to life shall be eligible for release on parole by the Board of Parole Hearings during his or her 20th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions. Effective January 1, 2020, Assembly Bill No. 965 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 577, § 2) amended section 3051 to add subdivision (a)(2)(C) defining the phrase" '[y]outh parole eligible date,'" and, as relevant here, to provide that the youth parole eligible date for a person eligible for a youth offender parole hearing under subdivision (b)(2) shall be the first day of the person's 20th year of incarceration. Here, Nelson was sentenced in 1988 to 15 years to life in prison and has already had multiple parole hearings, the first of which occurred in January 1996 after she had served less than 10 years.
Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551) amended former section 1170.95 (now section 1172.6) to include attempted murder under the natural and probable consequences doctrine and manslaughter. The enactment also addressed the evidence trial courts may consider in deciding resentencing petitions, among other changes. (Stats. 2021, ch. 551, § 2.) Nelson was not convicted of either attempted murder or manslaughter; and at the resentencing hearing, she agreed that the evidence on which the prosecution relied was admissible.
Effective January 1, 2021, the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1) added section 745 to the Penal Code. That statute provides that "[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." (§ 745, subd. (a).) A violation of the Racial Justice Act occurs if, among other things, the judge, a juror, an attorney, a law enforcement officer, or an expert witness in a case exhibited "bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin." (§ 745, subd. (a)(1).) A defendant may file a motion in the trial court, or, if judgment has been entered, a petition for writ of habeas corpus or a motion under section 1473.7 in a court of competent jurisdiction alleging a violation of section 745, subdivision (a). (§ 745, subd. (b); § 1473, subd. (e); People v. Lashon (2024) 98 Cal.App.5th 804, 811-812.)
When originally enacted, section 745 applied only prospectively to cases (unlike Nelson's) in which judgment had not been entered prior to January 1, 2021. (§ 745, former subd. (j), added by Stats. 2020, ch. 317, § 3.5; People v. Wilson (2024) 16 Cal.5th 874, 946.) The statute was amended to make relief available in all cases in which judgment is not final. (§ 745, subd. (j)(1), as amended by Stats. 2022, ch. 739, § 2; People v. Wilson, supra, at p. 946.) Starting January 1, 2024, section 745 also now applies "to all cases in which, at the time of the filing of a [petition for writ of habeas corpus] raising a claim under this section, the petitioner is currently serving a sentence in the state prison . . . regardless of when the judgment or disposition became final." (§ 745, subd. (j)(3), as amended by Stats. 2022, ch. 739, § 2.) Effective January 1, 2024, Assembly Bill No. 1118 (2023-2024 Reg. Sess.) (Stats 2023, ch. 464) amended section 745 to allow a defendant to seek review of a Racial Justice Act claim on direct appeal from the conviction or sentence if the violation is based on the trial record. (§ 745, subd. (b); People v. Wilson, supra, at p. 947.)
Here, the time to directly appeal Nelson's 1988 sentence has long since passed. The present appeal does not involve either a petition for writ of habeas corpus or a section 1473.7 motion. Nelson did not assert a claim of racial bias during the proceedings below; and her supplemental brief in this court contains no factual or legal analysis to support her challenge.
The only issue cognizable in this appeal is the propriety of the trial court's order denying Nelson's section 1172.6 petition for resentencing. Because Nelson does not challenge the trial court's conclusion that the prosecution proved beyond a reasonable doubt that she was guilty of murder under a still-valid theory and none of the cited legislative enactments provides a ground for reversal, we do not see a basis on which to disturb the trial court's order.
DISPOSITION
The order denying Nelson's petition under section 1172.6 is affirmed.
We concur: EARL, P. J.HULL, J.