Opinion
B336935
11-22-2024
THE PEOPLE, Plaintiff and Respondent, v. ISAIAH JAMES TUCKER et al., Defendants and Appellants
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Isaiah James Tucker. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Phillip Bullard, Jr. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. NA111269, Laura L. Laesecke, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant Isaiah James Tucker.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Phillip Bullard, Jr.
No appearance for Plaintiff and Respondent.
MARTINEZ, P. J.
INTRODUCTION
In May 2021, a jury found Isaiah James Tucker and Phillip Eugene Bullard, Jr. guilty of first degree murder (Pen. Code, § 187, subd. (a) ). The jury also found Bullard guilty of possession of a firearm by a felon (§ 29800, subd. (a)(1).) As to both defendants, the jury found true the specially alleged firearm and gang enhancements, but the trial court struck these enhancements at sentencing. Tucker and Bullard were each sentenced to an indeterminate state prison term of 50 years to life. We affirmed both convictions on direct appeal. (See People v. Tucker (Aug. 22, 2023, B317092) [nonpub. opn.].)
Further undesignated statutory references are to the Penal Code.
On February 7, 2024, the trial court denied the separate petitions for resentencing brought by Tucker and Bullard under section 1172.6 after deciding that neither defendant made a prima facie case for relief.
We appointed separate counsel on appeal to represent Tucker and Bullard. Both counsel filed a brief indicating they could identify no arguable issues. Tucker and Bullard thereafter each filed supplemental briefs. We also have identified no arguable issues after our own independent review of the record and analysis of the contentions presented by Tucker and Bullard. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence At Trial
In January 2019, Johnisha Brown asked her boyfriend, Maurice Ross, to meet her at a Long Beach bar known to be a hangout for the Insane Crips criminal street gang. Brown had been invited to the bar by her friend, Sharell Johnson, who was bartending there. Before Ross arrived, Brown had asked Johnson if there were any gang members in the bar, telling her Ross was a member of the Bloods, a rival of the Insane Crips. Johnson assured her there were none.
For context, we provide some factual and procedural background from the prior appellate opinion, People v. Tucker (Aug. 22, 2023, B317092 [nonpub. opn.]), affirming the convictions of Tucker and Bullard on direct appeal. (See People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9 [reciting facts from prior appellate opinion "[f]or purposes of this appeal"]; see also People v. Clements (2022) 75 Cal.App.5th 276, 293.)
Brown left the bar briefly to meet Ross at the nearby train station. Rodney Willis, an associate of the Insane Crips, was at the bar speaking with Johnson when Brown returned with Ross. Brown and Ross sat down at the bar; Willis sat at a table behind them. Shortly thereafter Tucker and Bullard arrived outside the bar in Tucker's SUV. Willis stepped outside and spoke to Tucker and Bullard before all three entered the bar.
Inside the bar, Ross used Brown's cell phone to record himself making gang signs indicating his membership in the Bloods. Brown told him to stop. Ross left the table to use the restroom. When Ross returned, he saw Bullard speaking with Brown and confronted him about flirting with Brown. Bullard apologized. Ross and Brown went outside to smoke. Tucker, Bullard, Willis and several other individuals followed them. Outside the bar, Bullard and Ross shook hands, seemingly diffusing any animosity between them. Willis, however, remained upset that Ross was in Insane Crips territory. Willis and Ross exchanged words and the confrontation escalated. Bullard and Willis backed Ross up against the building. Willis swung at Ross to punch him in the face, but he missed and fell to the ground. Ross ran away. Brown followed Ross at a slower pace.
Willis ran back to the bar to go inside. When Johnson stopped him from entering, he ran after Ross while Bullard walked slowly behind them. Tucker also followed. Tucker and Willis then changed direction and ran back toward the bar and Tucker's SUV. As Tucker ran past Brown, she heard him shout, "I'm going to get the blower," which she interpreted to mean a gun. Brown yelled at Ross to run. Tucker got into the driver's seat of his SUV. Bullard entered the SUV on the front passenger's side. Willis, who had retrieved his backpack from the bar, joined them in the vehicle. The group drove toward the train station. When they saw Ross on the train platform, Tucker stopped the SUV, and the three men ran out. Willis and Tucker chased Ross, while Bullard got into the driver's seat.
Willis caught up to Ross, who hit him in the face, causing Willis to fall to the ground and chip a tooth. Ross fled. When Ross ran behind the SUV, Bullard drove the car in reverse. Ross was not hit but seconds later two residents (a husband and wife) of a nearby apartment building saw the driver of the SUV extend his arm out the window with what appeared to be a gun and heard several gunshots.
Brown, who had followed Ross and was near the passenger's side of the SUV when the gunfire occurred, also heard the shots and saw muzzle flashes ("the light from the gun") coming from the SUV's driver's side. Brown was certain the driver, whom she did not see, was the shooter. Because she had seen Tucker drive away from the bar to follow Ross, Brown believed Tucker was the driver. Surveillance footage indicated Bullard was driving by the time the shooting occurred.
Ross was shot in the back and killed. Brown saw the SUV speed away. Tucker left the SUV with friends and relatives. It was impounded two weeks later by law enforcement officers.
Most of the confrontation inside and outside the bar and the ensuing chase was captured on surveillance cameras. The footage was played for the jury. The shooting itself was not recorded by surveillance cameras.
B. Verdict and Sentence
Tucker and Bullard were tried together. The jury found Tucker and Bullard guilty of first degree premeditated murder, and it found Bullard guilty of being a felon in possession of a firearm. The jury found true as to both men the enhancement allegation that a principal had intentionally discharged a firearm causing death and found not true the special allegation that Bullard had personally used or intentionally discharged a firearm causing death. The jury found all gang enhancements true.
In a bifurcated proceeding, Tucker and Bullard admitted they each had suffered a prior serious or violent felony under the Three Strikes law and a serious felony under section 667, subdivision (a). The court sentenced Tucker and Bullard to 50 years to life, 25 years to life for first degree premeditated murder, doubled under the Three Strikes law. The court struck all other special allegations, including the firearm enhancement, gang enhancement, and the section 667, subdivision (a), serious felony enhancement in the interest of justice.
C. Petitions for Resentencing
On July 20, 2022, Bullard, representing himself, filed a form petition for resentencing under section 1172.6. Tucker, also representing himself, filed his petition for resentencing on December 11, 2023. In both petitions, Bullard and Tucker checked a box stating they "could not presently be convicted of murder or attempted murder because of changes to Penal Code §§ 188 and 189, effective January 1, 2019" and asked the superior court to appoint counsel for them.
After appointing separate counsel for Tucker and Bullard, the trial court heard argument on the petitions on February 7, 2024. The court noted that this was "a trial that I conducted" and that "Mr. Bullard and Mr. Tucker were tried as aiders and abettors....There was no felony murder.... I did not instruct on felony murder. I did not instruct on natural and probable consequence, and this trial occurred in December of 2021.... So the court is making a ruling that neither defendant has provided a prima facie showing under [section] 1172.6 that they are entitled to an evidentiary hearing." Tucker and Bullard each timely appealed.
DISCUSSION
A. Governing Law
Senate Bill No. 1437 eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule. (See People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848; People v. Reyes (2023) 14 Cal.5th 981, 984.) Under section 1172.6, a defendant convicted of felony murder or murder under the natural and probable consequences doctrine can challenge his murder conviction if he or she "makes a 'prima facie showing' of entitlement to relief. [Citation.] This, in turn, requires a showing that, among other things, he 'could not presently be convicted of murder' under the amendments to the murder statutes that became effective on January 1, 2019." (People v. Arreguin (2023) 89 Cal.App.5th 58, 62; see Strong, at p. 708.)
Section 1172.6, however, does not allow a petitioner to raise new arguments that are not based on changes made by Senate Bill No. 1437. (See People v. Burns (2023) 95 Cal.App.5th 862, 865 (Burns) ["Section 1172.6 does not create a right to a second appeal."].) In other words, "[t]he mere filing of a section [1172.6] petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings." (People v. Farfan (2021) 71 Cal.App.5th 942, 947 (Farfan).)
B. There Are No Arguable Issues Presented Regarding the Superior Court's Denial of the Section 1172.6 Petitions
As stated, we appointed separate counsel to represent Tucker and Bullard on appeal from the denial of their section 1172.6 petitions. After reviewing the record, appointed counsel each filed a brief with the court that identified no arguable issues. Tucker and Bullard were advised by their counsel that counsel were unable to find any arguable issues on appeal and that Tucker and Bullard could personally submit any contentions they believed the court should consider. Each counsel also sent to Tucker and Bullard a copy of the brief and the record on appeal.
On August 12, 2024, we received a nine-page handwritten supplemental brief from Bullard. Bullard argues in his supplemental brief that "I did not murder, or aid and abet anyone with the intent to kill. The entire case is based on mistaken identity and false accusations." Bullard's supplemental brief in essence argues the superior court denied his section 1172.6 petition based on "mistaken identity and false accusations." But this is not a legally cognizable basis to challenge the superior court's denial of his petition. (See Burns, supra, 95 Cal.App.5th at p. 865; Farfan, supra, 71 Cal.App.5th at p. 947.)
On August 27, 2024, we received a three-page handwritten supplemental brief from Tucker. Tucker argues that he should not "be in jail for murder when I [have] never seen, held, touched, or knew about a gun being used in a crime that night with a full confession from the killer." The contentions raised in Tucker's supplemental brief do not provide a legally cognizable basis to challenge the superior court's denial of his petition because his arguments do not implicate the changes made to section 1172.6 by Senate Bill No. 1437. Tucker was not convicted on a theory of felony murder or under the natural and probable consequences doctrine. While the trial court instructed the jury on aiding and abetting, "Senate Bill No. 1437 did not change the law to prohibit direct aider and abettor liability on an imputed malice theory." (People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 936.) As we previously explained, "Tucker was guilty as an aider and abettor of an express malice, premeditated murder. The court's instructions on premeditation and deliberation, together with CALJIC Nos. 3.00 and 3.01, ensured that Tucker was convicted as a direct aider and abettor based on his individual mental state and not simply his participation in the crime." (People v. Tucker, supra, B317092). Accordingly, none of the issues raised by Tucker in his supplemental brief show that he "could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189" made by Senate Bill No. 1437. (§ 1172.6, subd. (a)(3).)
Willis was also charged with first degree murder and being a felon in possession of a firearm. Willis later admitted to being the actual shooter, and entered into a plea agreement with the People following a trial that ended in a hung jury.
No cognizable legal issues have been raised by appellate counsel, or by Tucker or Bullard in their supplemental briefs. Our independent review of the record has also not identified the existence of any arguable issues. (See People v. Delgadillo (2022) 14 Cal.5th 216, 231-232; see generally People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The orders denying the section 1172.6 petitions filed by Tucker and Bullard are affirmed.
We concur: SEGAL, J. STONE, J.