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The People v. Armstrong

California Court of Appeals, Third District, Sacramento
Aug 9, 2023
No. C098171 (Cal. Ct. App. Aug. 9, 2023)

Opinion

C098171

08-09-2023

THE PEOPLE, Plaintiff and Respondent, v. SHAMAR ARMSTRONG, Defendant and Appellant.


NOT TO BE PUBLISHED

(Super. Ct. No. 17FE010746)

HORST, J. [*]

In October 2019, a jury found defendant Shamar Armstrong guilty of first degree murder and attempted robbery. As to both counts, the jury also found true that defendant personally used a firearm. During trial, the prosecution played a recording of defendant rapping that had been extracted from defendant's phone. A police detective opined that the lyrics referred to a gun and a marijuana robbery. As to the murder charge, the trial court instructed the jury with CALCRIM 540B, which stated that the jury could only find defendant guilty of felony murder if it concluded that "1. Defendant was the actual killer; [¶] 2. The defendant was not the actual killer, but, with the intent to kill, aided and abetted the crime of murder; [¶] OR [¶] 3. The defendant was not the actual killer, but was a major participant in the underlying felony of attempted robbery and acted with reckless indifference to human life." At sentencing, the trial court imposed a sentence of 42 years plus life without parole in state prison. This court reversed the attempted robbery conviction but otherwise affirmed the judgment in 2021. (People v. Armstrong (Nov. 10, 2021, C091313) [nonpub. opn.].)

In January 2022, defendant filed a petition for resentencing under Penal Code former section 1170.95, now 1172.6. The trial court denied defendant's petition, finding him ineligible for relief as a matter of law because defendant was convicted after the effective date of Senate Bill No. 1437 (Senate Bill 1437) (2017-2018 Reg. Sess.), and because the jury was properly instructed and therefore necessarily found that defendant was a major participant in the actions and acted with reckless indifference to human life.

Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Although defendant filed his petition under former section 1170.95, we will cite to the current section 1172.6 in the remainder of our opinion.

Defendant now appeals the trial court's denial of his petition for resentencing. His appellate counsel filed a brief raising no arguable issues under People v. Delgadillo (2022) 14 Cal.5th 216, and asked that we exercise our discretion to review the record for arguable issues on appeal.

In June 2023, this court notified defendant he had 30 days to file a supplemental brief raising any argument he wanted us to consider. Defendant filed a supplemental brief, arguing (1) "malice [was] imputed upon [him]," (2) under newly enacted Evidence Code section 352.2, rap lyrics were used to destroy his character, (3) youth factors should "play a big role," and (4) there were exculpatory latent fingerprints that were never raised at trial.

Because the record indicates defendant is not entitled to relief under section 1172.6, we will affirm the trial court's order denying the petition for resentencing.

DISCUSSION

Senate Bill 1437, which became effective on January 1, 2019, amended section 188, which defines malice, and section 189, which defines degrees of murder. (Stats. 2018, ch. 1015, §§ 2 &3.) Amended section 189 states: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] [or] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e).)

Senate Bill 1437 also added section 1172.6, which allows those convicted of murder under the felony-murder theory to petition the trial court to vacate the conviction and resentence the defendant. (§ 1172.6, subd. (a).) "If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause." (§ 1172.6, subd. (c).)

The prima facie inquiry under section 1172.6 subdivision (c) is "limited." (People v. Lewis (2021) 11 Cal.5th 952, 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." '" (Ibid.) Although the court may rely on the record of conviction (including a prior appellate court opinion) in determining whether defendant has made a prima facie showing, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.)

Defendant's trial occurred after the amendments to the felony-murder law were effective, and the jury instructions reflected the requirements of the new law. Significantly, the jury was instructed pursuant to CALCRIM 540B that it could only find defendant guilty of first degree murder if it also found that defendant was the actual killer, or aided and abetted the crime of murder with the intent to kill, or was a major participant in the underlying felony of attempted robbery and acted with reckless indifference to human life. Under the circumstances, we find no merit to defendant's claim that malice was imputed upon him.

We also find no merit in defendant's arguments regarding the admission of rap lyrics, the consideration of "youth factors," and potentially exculpatory latent fingerprints. An appeal from a denial of a section 1172.6 petition is "not a direct appeal," and the statute "does not permit a petitioner to establish eligibility [for resentencing] on the basis of alleged trial error." (People v. DeHuff (2021) 63 Cal.App.5th 428, 438.)

DISPOSITION

The trial court's order denying defendant's petition for resentencing is affirmed.

We concur: HULL, Acting P. J., MAURO, J.

[*] Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

The People v. Armstrong

California Court of Appeals, Third District, Sacramento
Aug 9, 2023
No. C098171 (Cal. Ct. App. Aug. 9, 2023)
Case details for

The People v. Armstrong

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SHAMAR ARMSTRONG, Defendant and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Aug 9, 2023

Citations

No. C098171 (Cal. Ct. App. Aug. 9, 2023)