People v. Bellows CA2/2 ( 2021 )

Filed 9/22/21 P. v. Bellows CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306995
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA130645)
v.
PATRICIA BELLOWS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Patrick Connolly, Judge. Affirmed.
Spolin Law and Aaron Spolin for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Amanda Lopez and Chung L.
Mar, Deputy Attorneys General, for Plaintiff and Respondent.
******
Defendant and appellant Patricia Bellows (defendant)
appeals from the summary denial of her petition for resentencing
under Penal Code section 1170.95.1 She contends that the trial
court erred in ruling that her convictions of attempted murder
were ineligible for vacatur and resentencing as a matter of law.
Finding defendant’s contention to be without merit, we affirm the
trial court’s order.
BACKGROUND
2014 conviction
In 2014, a jury convicted defendant of two counts of
attempted murder in violation of sections 664 and 187,
subdivision (a), and one count of shooting at an inhabited
dwelling in violation of section 246. The jury found true the
allegations that the attempted murders were willful, deliberate,
and premeditated; that a principal personally and intentionally
discharged a firearm; and that the crimes were committed for the
benefit of, at the direction of, or in association with a criminal
street gang. Defendant admitted prior convictions alleged under
the “Three Strikes” law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-
(d)), and she was sentenced to a total aggregate prison term of 85
years to life. In 2016, this court affirmed the judgment on appeal
People v. Bellows (June 24, 2016, B264633) (nonpub. opn.)
(Bellows I),2 and the California Supreme Court denied review.
(People v. Bellows (Oct. 12, 2016, S236217) [nonpub opn.]).
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 We take judicial notice of our appellate opinion affirming
the 2014 judgment and summarize the procedural facts and
evidence from the opinion, as the parties have done here.
2
Trial evidence
Defendant and her brother Norvalle Willis, both gang
members, attended a house party where Willis got into an
argument with the host, “Boli.” Party guests then joined in
beating Willis. When defendant and two friends came to his
assistance a guest beat defendant as well. (Bellows I, supra,
B264633.) A few days later defendant drove two other (male)
members of her gang in her mother’s SUV to the site of the party.
When they arrived about 2:30 a.m., one of the men knocked on
the door of the house. When Boli’s mother and her boyfriend
came to a window, the man asked for Boli and then fired a gun
six to eight times toward the house. (Ibid.) Nearby police officers
heard the gunfire and soon saw defendant’s SUV leaving the
area. The officers pursued the vehicle and eventually detained
and arrested defendant and the two male suspects. (Ibid.)
Appeal from the 2014 judgment
In her appeal defendant contended that substantial
evidence did not support her conviction as an aider and abettor of
the attempted murders because the evidence was insufficient to
prove that she shared the shooter’s intent to kill. (Bellows I,
supra, B264633.) The trial court had refused the prosecution’s
request to instruct regarding the natural and probable
consequences theory of aiding and abetting and instructed solely
on principles of direct aiding and abetting. Defendant argued
that the evidence supported only the natural and probable
consequences theory with a target crime of shooting at the house.
We disagreed and found that substantial evidence supported the
jury’s finding that defendant knew and shared the shooter’s
intent to kill at the time she directly aided and facilitated the
crime. (Ibid.)
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The 1170.95 petition
In February 2020, defendant petitioned for resentencing on
her attempted murder convictions under section 1170.95. Her
petition alleged that she was charged by information that allowed
the prosecution to proceed under the natural and probable
consequences doctrine; that she was convicted of attempted
murder; and that she could not now be convicted of attempted
murder because of the changes to sections 188 and 189, effective
January 1, 2019. On June 23, 2020, the trial court found that as
a matter of law, defendant was not entitled to relief from
attempted murder convictions under section 1170.95, and the
court summarily denied the petition.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant contends that the trial court erred in concluding
that section 1170.95 does not apply to a conviction of attempted
murder.
Defendant acknowledges that on its face section 1170.95
does not apply to attempted murder convictions, but points out
that at least one court has held that that Senate Bill No. 1437
(2017-2018 Reg. Sess.) abrogated the natural and probable
consequences doctrine as it applies to attempted murder. (See
People v. Medrano (2019) 42 Cal.App.5th 1001, 1008, 1017-1019,
review granted Mar. 11, 2020, S259948.) That court did not hold,
however, that section 1170.95 provides a procedure to vacate an
attempted murder conviction. (See Medrano, at p. 1018.) Other
courts, including this court, have held that it does not. (People v.
Love (2020) 55 Cal.App.5th 273, 282, review granted Dec. 16,
2020, S265445; People v. Alaybue (2020) 51 Cal.App.5th 207, 223;
People v. Munoz (2019) 39 Cal.App.5th 738, 754, review granted
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Nov. 26, 2019, S258234; People v. Lopez (2019) 38 Cal.App.5th
1087, 1105, review granted Nov. 13, 2019, S258175.)
Defendant notes that the issue is presently before the
California Supreme Court in People v. Lopez, supra, 38
Cal.App.5th 1087, and that review was granted in order to
consider the following issues:
“(1) Does Senate Bill No. 1437 (Stats. 2018, ch. 1015)
apply to attempted murder liability under the
natural and probable consequences doctrine? (2) In
order to convict an aider and abettor of attempted
willful, deliberate and premeditated murder under
the natural and probable consequences doctrine,
must a premeditated attempt to murder have been a
natural and probable consequence of the target
offense? In other words, should People v. Favor
(2012) 54 Cal.4th 868 be reconsidered in light of
Alleyne v. United States (2013) 570 U.S. 99 and
People v. Chiu (2014) 59 Cal.4th 155?” (People v.
Lopez, supra, S258175.)
Defendant invites this court to decide the first quoted issue
in the affirmative and to find that she was convicted of attempted
murder under the natural and probable consequences doctrine.
Defendant urges that we remand the matter to the superior court
with directions to proceed under section 1170.95 as though she
had made a prima facie showing of eligibility under the statute.
We decline to reverse the trial court’s order, as defendant was not
in fact convicted under the natural and probable consequences
doctrine, but as a direct aider and abettor. The appellate opinion
sets forth that no instructions regarding the natural and probable
consequences doctrine were given to the jury and instead the jury
was instructed that to find defendant liable for attempted
murder, it must find that she was a direct aider and abettor who
knew and shared the actual killer’s intent to kill. (Bellows I,
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supra, B264633.) We concluded that the jury necessarily found
that defendant directly aided and abetted the crime and shared
the shooter’s intent to kill at the time. (Ibid.) As a matter of law
a person convicted as a direct aider and abettor with the intent to
kill, not under the felony-murder rule or the natural and
probable consequences doctrine, is ineligible for relief under
section 1170.95. (§ 1170.95, subd. (a); see People v. Nguyen
(2020) 53 Cal.App.5th 1154, 1167.)
Defendant also argues that she “must have been convicted
under a natural and probable consequences theory of attempted
murder given that there was not sufficient evidence to convict her
based on a theory of direct aiding and abetting.” That issue was
previously decided against defendant in her appeal when we
rejected the contention that substantial evidence did not support
the jury’s finding that defendant intended to kill. (Bellows I,
supra, B264633.) “Nothing in the language of section 1170.95
suggests it was intended to provide redress for allegedly
erroneous prior factfinding. In particular, subdivision (a)(3) of
section 1170.95 says nothing about erroneous prior findings or
the possibility of proving contrary facts if given a second chance.
Rather, it requires that the petitioner could not be convicted of
murder because of the changes to sections 188 and 189, not
because a prior fact finder got the facts wrong. The purpose of
section 1170.95 is to give defendants the benefit of amended
sections 188 and 189 with respect to issues not previously
determined, not to provide a do-over on factual disputes that
have already been resolved.” (People v. Allison (2020) 55
Cal.App.5th 449, 461.) Otherwise, “every convicted murderer
who could make a prima facie showing . . . that the prior findings
were factually incorrect would be entitled to a bench trial de novo
on those findings.” (Ibid.)
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Even if we were to assume that Senate Bill No. 1437 (2017-
2018 Reg. Sess.) and section 1170.95 expressly or impliedly
applied to attempted murder, defendant would remain ineligible
for relief under section 1170.95 unless she could not now be
convicted of the underlying offense “because of changes to Section
188 or 189 made effective January 1, 2019.” (§ 1170.95, subd.
(a).) Prior to the change in law, one who with the intent to kill
directly aided and abetted the perpetrator’s attempted murder
would be guilty of attempted murder. (People v. Lee (2003) 31
Cal.4th 613, 624.) After the changes to sections 188 and 189, one
who with the intent to kill, directly aids and abets the
perpetrator’s attempted murder is guilty of attempted murder.
(People v. Medrano, supra, 42 Cal.App.5th at p. 1013, review
granted.) Thus, as defendant was convicted as a direct aider and
abettor who harbored an intent to kill, she could still be convicted
of attempted murder after the statutory changes.
In sum, section 1170.95 does not provide a procedure to
vacate an attempted murder conviction, and even if it did,
defendant would not qualify for relief. We conclude that the trial
court did not err in summarily denying defendant’s petition.
DISPOSITION
The order is affirmed.
___________________________
CHAVEZ, J.
We concur:
______________________________ ___________________________
ASHMANN-GERST, Acting P. J. HOFFSTADT, J.
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