People v. Blount CA2/2 ( 2021 )

Filed 9/9/21 P. v. Blount CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B309623
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA174239)
v.
PAMELA YVETTE BLOUNT,
Defendant and Appellant.
THE COURT:
Pamela Yvette Blount (defendant) appeals the trial court’s
1
denial of her motion for relief under Penal Code section 1170.95.
Defendant’s attorney filed a brief raising no issues and asked this
1 All further statutory references are to the Penal Code.
court to independently review the record. Having conducted our
own examination of the record, we are satisfied that no arguable
issue exists which would call into question defendant’s
ineligibility for resentencing relief under section 1170.95. We
accordingly affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
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I. Facts
A. The underlying crime
One evening in September 1998, defendant pursued Jerry
Hunter into an alley and, after he fell to the ground, defendant
stabbed him in the back and chest while proclaiming, “I hate you,
Jerry.” During an interview with police, defendant explained
that she stabbed Jerry in self-defense, but recalled that she had
also previously stabbed a former live-in lover.
B. Conviction and appeal
At defendant’s trial in July 1999, “the act of stabbing was
conceded, but whether it was an offensive or defensive act was
undetermined.” The jury convicted defendant of second degree
murder for the killing of Jerry (§ 187, subd. (a)), and she was
sentenced to 15 years to life.
We affirmed the judgment in an unpublished opinion.
II. Procedural Background
On January 23, 2020, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that (1) the
prosecution proceeded “under a theory of felony murder or
murder under the natural and probable consequences theory,” (2)
2 We largely draw these facts from our prior, unpublished
opinion affirming defendant’s conviction. (People v. Blount (Aug.
14, 2000, B134616).)
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she was “convicted of [second] degree murder under the natural
and probable consequences doctrine or under the . . . felony
murder doctrine,” and (3) it was determined that she “was not a
major participant and/or did not act with reckless indifference to
human life.” The People filed a response, and defendant’s court-
appointed counsel filed a reply in support of the petition.
After reviewing the available record of conviction, the trial
court denied defendant’s petition in a Memorandum of Decision
issued on November 16, 2020. The court found that defendant
did not make a prima facie showing because she “was not
convicted on a theory of felony murder or under the natural and
probable consequences doctrine”; rather, defendant “was the
actual killer” and therefore “is ineligible for relief [under section
1170.95] as a matter of law.”
Defendant filed this timely appeal.
DISCUSSION
Defendant’s appointed counsel filed an “Opening Brief” in
which no arguable issues are raised, and asked this court for an
independent review of the record as required by People v. Wende
(1979) 25 Cal.3d 436. Because defendant appeals from an order
denying postconviction relief and because defendant did not avail
herself of the right to file a supplemental brief, we may properly
dismiss this appeal as abandoned. (People v. Cole (2020) 52
Cal.App.5th 1023, 1039-1040, review granted Oct. 14, 2020,
S264278.) However, because the Supreme Court has granted
review of Cole and is also reviewing the question of what
procedures this court must follow when counsel determines that
an appeal from an order denying postconviction relief lacks
arguable merit (People v. Delgadillo, review granted Feb. 17,
2021, S266305), we will accept counsel’s invitation to conduct a
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Wende review of defendant’s appeal in an abundance of caution
rather than dismiss the appeal as abandoned.
Having conducted our own examination of the record, we
are satisfied that no arguable issue exists which would call into
question defendant’s ineligibility for resentencing relief under
section 1170.95.
A person is entitled to relief under section 1170.95 if, as a
threshold matter, (1) “[a] complaint, information, or indictment
was filed against [her] that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine,” (2) she “was convicted of . . .
second degree murder following a trial,” and (3) she “could not be
convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (a).) A person may be convicted of murder, even after the
2019 changes to sections 188 and 189, if she “was the actual
killer.” (§ 189, subd. (e)(1).)
Although defendant in her petition alleged each element
necessary to make a prima facie case for relief under section
1170.95, the trial court is not required to accept those allegations
at face value and may also examine the record of conviction.
(People v. Lewis (2021) 11 Cal.5th 952, 970-972 (Lewis).) If the
record of conviction “‘contain[s] facts refuting the allegations
made in the petition,’” then the trial court may summarily reject
the petition’s allegations without conducting an evidentiary
hearing. (Id. at p. 971, quoting People v. Drayton (2020) 47
Cal.App.5th 965, 979.)
Here, the trial court correctly concluded that defendant did
not make out a prima facie case for relief because the record of
conviction establishes, as a matter of law, that she is not eligible
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for relief. Defendant was not charged with or convicted of felony
murder or murder under the natural and probable consequences
doctrine: No underlying felony (such as robbery) was underway
when the killing occurred and the trial court did not instruct the
jury on either theory. Rather, defendant’s conviction was based
on her being the “actual killer” and the jury’s rejection of her self-
defense defense. She is hence ineligible for relief under section
1170.95. (E.g., People v. Cornelius (2020) 44 Cal.App.5th 54, 58,
review granted Mar. 18, 2020, S260410; People v. Tarkington
(2020) 49 Cal.App.5th 892, 899-900, 910, review granted Aug. 12,
2020, S263219, abrogated on another ground by Lewis, supra, 11
Cal.5th at pp. 316-317.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
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LUI, P.J., CHAVEZ, J., HOFFSTADT, J.
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