People v. Duncan CA2/4 ( 2022 )

Filed 5/23/22 P. v. Duncan CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B312562
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA213135
v.
CAESAR DUNCAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen A. Marcus. Affirmed.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Wyatt E. Bloomfield,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2003, a jury convicted defendant and appellant Caesar
Duncan of second-degree murder and conspiracy to commit
murder. In 2019, Duncan filed a petition for resentencing under
Penal Code section 1170.95.1 The trial court granted Duncan
relief on the murder conviction, but concluded he was ineligible
for relief as a matter of law on the conspiracy to commit murder
conviction. On appeal, Duncan contends the trial court erred by
denying him relief on the conspiracy to commit murder
conviction, arguing the jury could have convicted him under the
natural and probable consequences doctrine. We are not
persuaded. On its face, section 1170.95 does not apply to
convictions for conspiracy to commit murder. Moreover, Duncan’s
conspiracy to commit murder conviction required a finding by the
jury that he harbored the intent to kill, making him ineligible for
relief under the statute. The order denying him relief on the
conspiracy to commit murder conviction is therefore affirmed.
BACKGROUND2
As noted above, in 2003, a jury convicted Duncan of second-
degree murder (§ 187, subd. (a); count one) and conspiracy to
commit murder (§ 182, subd. (a)(1); count three). The jury also
found various firearm allegations true on those counts, although
1 All undesignated statutory references are to the Penal
Code.
2 The following is a summary of the relevant procedural
background relating to Duncan’s section 1170.95 petition. We
omit any recitation of the facts underlying his conspiracy to
commit murder conviction because they are not relevant to the
issues presented in this appeal.
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the trial court later ordered those allegations stricken.
(§ 12022.53, subds. (c), (d), (e)(1).) The trial court sentenced
Duncan to 25 years to life on the conspiracy to commit murder
count. It sentenced him to a concurrent term of 15 years to life on
the second-degree murder count.
In 2019, Duncan filed a petition for resentencing under
section 1170.95. The trial court appointed counsel, considered
briefing from both parties, then held a prima facie hearing on the
petition. At the hearing, the prosecution conceded the court
should grant relief on Duncan’s murder conviction. The court
accepted the prosecution’s concession. The court denied Duncan
relief on his conspiracy to commit murder conviction, concluding
it did not “come within the ambit of Penal Code section 1170.95.”
At the resentencing hearing, Duncan’s attorney renewed
the argument that section 1170.95 should apply to the conspiracy
to commit murder conviction. The trial court again rejected the
contention, noting that section 1170.95 does not refer to
conspiracy to commit murder, and the jury’s guilty verdict on
that count necessarily included a finding of intent to kill. The
court also noted the natural and probable consequences doctrine
was irrelevant because Duncan was convicted of conspiracy to
commit murder, not conspiracy to commit a different crime that
resulted in murder. The court explained: “So [the natural and
probable consequences doctrine] doesn’t apply in this case. There
was no target crime. This was conspiracy to commit murder.” The
trial court vacated Duncan’s murder conviction and resentenced
him to the previously-imposed 25 years to life term on the
conspiracy to commit murder count.
Duncan timely appealed.
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DISCUSSION
I. Governing Law: Senate Bill 1437 and Section 1170.95
The Legislature enacted Senate Bill 1437 (SB 1437) “to
amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f);
accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).)3
SB 1437 also added section 1170.95 to the Penal Code.
(Stats. 2018, ch. 1015, § 4.) This section permits individuals who
were convicted of felony murder or murder under a natural and
probable consequences theory, but who could not be convicted of
murder following SB 1437’s changes to sections 188 and 189, to
petition the sentencing court to vacate the conviction and
resentence on any remaining counts. (§ 1170.95, subd. (a).) A
petition for relief under section 1170.95 must include a
declaration by the petitioner that he or she is eligible for relief
under section 1170.95 based on all the requirements of
subdivision (a), the superior court case number and year of the
petitioner’s conviction, and a request for appointment of counsel,
should the petitioner seek appointment. (§ 1170.95, subd. (b)(1).)
3 Though it is not directly relevant to this appeal, we note
that effective January 1, 2022, Senate Bill 775 amended section
1170.95 to provide relief for individuals convicted of attempted
murder and voluntary manslaughter under certain
circumstances. (Stats. 2021, ch. 551.)
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Subdivision (c) of section 1170.95 provides: “Within 60 days
after service of a petition that meets the requirements set forth in
subdivision (b), the prosecutor shall file and serve a response.
The petitioner may file and serve a reply within 30 days after the
prosecutor’s response is served. These deadlines shall be
extended for good cause. After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to
determine whether the petitioner has made a prima facie case for
relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause. If the court declines to make an order to show cause,
it shall provide a statement fully setting forth its reasons for
doing so.” Our Supreme Court has explained that “petitioners are
entitled to the appointment of counsel upon the filing of a facially
sufficient petition [citations], and that only after the appointment
of counsel and the opportunity for briefing may the superior court
consider the record of conviction to determine whether ‘the
petitioner makes a prima facie showing that he or she is entitled
to relief.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 957, italics in
original.)
“If the trial court determines that a prima facie showing for
relief has been made, the trial court issues an order to show
cause, and then must hold a hearing ‘to determine whether to
vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not . . . previously been
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.’ (§ 1170.95, subd. (d)(1).)” (Lewis, supra,
11 Cal.5th at p. 960.) At the hearing, the parties may rely on the
record of conviction or present “new or additional evidence” to
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support their positions, and “the burden of proof shall be on the
prosecution . . . to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)
II. Analysis
Duncan argues the trial court erred in concluding he was
ineligible for relief as a matter of law on his conspiracy to commit
murder conviction. He specifically contends the jury could have
convicted him on the theory that the murder was a natural and
probable consequence of aiding and abetting or conspiring to
commit an assault with a deadly weapon. He therefore asks this
court to remand the case for an evidentiary hearing. We reject his
contention and deny his request. Section 1170.95, which allows
relief for certain individuals convicted of murder, attempted
murder, and manslaughter, does not state that the crime of
conspiracy to commit murder is included within its ambit. (See
§ 1170.95, subd. (a).) Additionally, a review of the jury
instructions here regarding conspiracy to commit murder shows
the jury made a finding of express malice, which remains a valid
theory of murder liability under current law. (See §§ 187, subd.
(a), 188, subd. (a) [express malice remains a valid theory of
murder liability]; People v. Swain (1996) 12 Cal.4th 593, 607 [“[A]
conviction of conspiracy to commit murder requires a finding of
intent to kill, and cannot be based on a theory of implied
malice.”]; People v. Beck and Cruz (2019) 8 Cal.5th 548, 641
[“‘[A]ll conspiracy to commit murder is necessarily conspiracy to
commit premeditated and deliberate first degree murder.’
[Citation.]”].) For these reasons, the trial court was correct in
concluding Duncan is ineligible for relief as a matter of law on his
conspiracy to commit murder conviction.
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DISPOSITION
The order denying Duncan section 1170.95 relief on his
conspiracy to commit murder conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
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