People v. Jackson CA2/2 ( 2021 )

Filed 9/13/21 P. v. Jackson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B311740
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA117942)
v.
FRED J. JACKSON,
Defendant and Appellant.
THE COURT:
Fred Jackson appeals an order denying his petition for
resentencing. (Pen. Code, §§ 1170, 1170.95.)1 He was convicted
by jury in 1997 of two counts of attempted first degree murder
1 Undesignated statutory references are to the Penal Code.
and two counts of robbery, with findings that he used a deadly
weapon to commit the offenses and inflicted great bodily injury
on the victims. (§§ 664/187, 211, 12022, subd. (b), 12022.7, subd.
(a).) The jury found he had four prior felony “strike” convictions
and two prior serious felony convictions. (§ 667.) He was
sentenced to a prison term of 126 years to life.
This court affirmed the judgment in People v. Jackson
(Aug. 25, 1998, B110981) [nonpub. opn.]. As described in our
opinion, Jackson was seen wandering around in a high-rise on
July 6, 1995, where a witness recognized him from a recent
interview. Jackson entered an office suite. There, a worker
confronted him when she saw him removing money from her
purse. He grabbed her and held a weapon to her back. He forced
the victim and her colleague to lay on the floor and tied their
hands. He removed a bracelet from the second victim and rifled
through her purse. Jackson slashed both women’s necks and
stabbed them multiple times in the back. (People v. Jackson,
supra, B110981.)
The victims would have died from their wounds had
another worker not found them and called for help. One of the
victims identified Jackson in a photographic lineup, as did other
people who encountered Jackson in the building shortly before
the attack. The person who interviewed Jackson gave police the
home address he had provided; he was arrested there the next
day. Bloodstains on Jackson’s clothing and shoes contained DNA
from one of the victims. The knife used in the crime was
recovered from his kitchen. The victims identified Jackson as
their assailant at trial. He denied the charges but admitted a
1982 voluntary manslaughter conviction and four 1987 robbery
convictions. (People v. Jackson, supra, B110981.)
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In 2021, Jackson petitioned for resentencing. He argued
that the evidence did not support his convictions and faulted his
attorney’s failure to argue that an energy supplement he used
before the crimes caused his behavior. He expressed remorse for
the harm he caused. He contended that the jury should have
been instructed on a “natural and probable consequences” theory.
He believes that the 26 years he has served “seems adequate,”
given his age and education he has obtained while incarcerated.
The court denied Jackson’s petition. It found he does not
qualify for resentencing as a matter of law. The legislation he
cites does not apply to him.
Jackson appealed the denial of his petition. (§ 1237, subd.
(b).) We appointed counsel to represent Jackson in his appeal.
After examining the record, counsel filed an opening brief raising
no issues. (People v. Wende (1979) 25 Cal.3d 436, 441–443.) We
advised Jackson that he could personally submit any contentions
or issues that he wished to raise on appeal. He did not submit a
supplemental brief.
At the outset, we note that Jackson’s evidentiary
arguments had to be made on direct appeal; it is too late to say
the evidence is insufficient to support the jury’s verdict.
Resentencing is authorized for “[a] person convicted of felony
murder or murder under a natural and probable consequences
theory.” (§ 1170.95, subd. (a).) “By its plain language, section
1170.95 thus makes resentencing relief available only to
qualifying persons convicted of murder.” (People v. Sanchez
(2020) 48 Cal.App.5th 914, 918.) Jackson was not convicted of
murder. The statute does not apply to his attempted murder
convictions. (People v. Alaybue (2020) 51 Cal.App.5th 207, 222–
225; People v. Harris (2021) 60 Cal.App.5th 557, 566, review
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granted Apr. 21, 2021, S267529; People v. Larios (2019) 42
Cal.App.5th 956, 970, review granted Feb. 26, 2020, S259983;
People v. Medrano (2019) 42 Cal.App.5th 1001, 1018, review
granted Mar. 11, 2020, S259948.)
Jackson cited the “natural and probable consequences”
theory of accomplice liability. It applies to a person who aids or
abets a target offense and is found guilty of a nontarget offense
that was a natural and probable consequence of the crime the
accomplice aided and abetted. (People v. Gentile (2020) 10
Cal.5th 830, 843–844.) Accomplice liability theories do not apply
to Jackson, who was the sole perpetrator of the crimes. The jury
found he had the requisite murderous intent. (People v. Smith
(2005) 37 Cal.4th 733, 739 [a person must intend to kill to be
convicted of attempted murder].)
Jackson cited section 1170, which allows the court to recall
a sentence “within 120 days of the date of commitment” or on the
recommendation of the parole board or district attorney. (§ 1170,
subd. (d)(1).) The court lacked jurisdiction to recall Jackson’s
sentence on its own motion. No authorized agency recommended
sentence recall. Section 1170 does not assist Jackson.
Jackson sought relief under two recent laws, Assembly Bill
No. 2542 (California Racial Justice Act of 2020) and Assembly
Bill No. 3234 (Elder Parole Program). Assembly Bill 2542
“applies only prospectively in cases in which judgment has not
been entered prior to January 1, 2021.” (§ 745, subd. (j).) It does
not apply to Jackson’s 1997 conviction. Assembly Bill 3234 does
not apply to persons sentenced under the Three Strikes law.
(§ 3055, subd. (g).) Jackson was sentenced under the Three
Strikes law.
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We have reviewed the entire record and are satisfied that
no arguable issue exists. (People v. Wende, supra, 25 Cal.3d at
pp. 441–443; People v. Kelly (2006) 40 Cal.4th 106, 125–126.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.
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