People v. Mabry CA4/2 ( 2021 )

Filed 10/1/21 P. v. Mabry CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076171
v. (Super.Ct.No. CR37941)
TONY MABRY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P.
Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Tony Mabry appeals from the trial court’s order denying
his petition for resentencing under Penal Code1 section 1170.95. Defendant argues that
because the jury was instructed under the natural and probable consequences doctrine, the
trial court erred by failing to accept the representations in the petition as true and by
making factual determinations without a hearing. He thus believes a remand is necessary
for the trial court to issue an order to show cause and conduct an evidentiary hearing.
Under the circumstances of this case, we find no error and affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background2
A Perris police officer, Herbert Ellison, testified that he was on routine patrol in an
integrated neighborhood at 11:30 p.m. on September 27, 1990, when he observed a
parked car, a Toyota, with the trunk open. He also noticed a pickup truck with a camper
shell immediately behind the parked car. The pickup had its keys in the ignition. No
other people were in the area. He looked in the open trunk of the car and saw a box of
bullets. While waiting to be told if the vehicle was stolen, he heard several shots being
fired nearby. He reported the shots and then heard a burst of automatic weapons fire. He
then withdrew to a nearby vantage point to await assistance. He then saw a person on a
1 All future statutory references are to the Penal Code unless otherwise stated.
2 The factual background is taken verbatim from this court’s nonpublished
opinion in defendant’s prior direct appeal, case No. E009598. (People v. Mabry &
Lenoir (Sept. 16, 1992, E009598) [nonpub. opn.] (Mabry I).) This opinion is attached to
defendant’s request for judicial notice, which we granted, as exhibit A.
2
motor scooter speeding away from the area. He pursued the scooter but lost it when it
went through some fields and an area where the patrol car could not go.
Two other officers arrived at a home in the area of the shooting and found a man
lying dead on the floor of a garage. Another officer testified that he was securing the area
when a neighbor, Mr. Kinser, approached and told him that a man was in Mr. Kinser’s
fenced and locked patio. The patio was located next to an alley which runs behind the
residence involved in the shooting, and the patio was surrounded by a six- to eight-foot
fence. The officer looked over the fence and saw defendant Lenoir sitting in the patio.
Defendant Lenoir was ordered to come out of the patio and was handcuffed. The officers
then entered the patio and saw defendant Mabry hiding. After defendant Mabry was
secured, the patio was searched and two weapons, a holster, and a wallet were found.
One weapon, a .30-caliber carbine, was found five to seven feet from defendant Mabry.
The second weapon was a .25-caliber semiautomatic handgun. It was found about three
to five feet away from the place where defendant Lenoir had been sitting.
Mr. Kinser testified that he was walking into the alley when he heard the gunshots
and saw three men running in the alley. One of the men fired two shots at him. Later,
after the police arrived, a neighbor told him that someone was in his yard. Mr. Kinser
relayed this information to a police officer.
A forensic pathologist testified that the victim had been shot three times, once with
a .25-caliber bullet. The other two wounds were from a larger caliber gun, probably a
rifle.
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A criminalist testified that a bullet found near the victim was fired by the carbine
found near defendant Mabry. The criminalist also testified that one of the casings found
in the area of the killing was probably fired from the carbine. The markings on two other
bullets indicated they could have been fired from the .25-caliber handgun found near
defendant Lenoir. The trajectories of the bullet holes found in the home indicated the
bullets could have been fired from the backyard of the home adjacent to the alley.
A possible motive for the shooting was provided by the daughter of the woman
living in the home. She testified that she was barbecuing hamburgers in the backyard
earlier in the evening of the shooting when two Black men, not defendants, came down
the alley and asked if they could buy a hamburger from her. Her mother’s boyfriend, not
the victim, rudely told the men to leave, using racial epithets. The men left peaceably.
Defendant Mabry testified that his co-defendant, Lenoir, convinced him to go to
Perris that evening in the pickup truck to meet some women friends of Lenoir. He denied
any knowledge of the Toyota vehicle. He admitted being in the alley with Lenoir when
they heard shots. He saw two or three people running up the alley towards them, and he
heard people yelling racial epithets. They climbed a fence and ended up in someone’s
backyard. He denied being armed or ever seeing the weapons before the preliminary
hearing. Despite his denial that he had gone around the front of the pickup truck, near the
open trunk of the car, defendant Mabry’s fingerprints were found on the hood of the
pickup truck.
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B. Procedural Background
Defendants Mabry and Lenoir were convicted of first degree murder (§ 187),
being ex-felons in possession of firearms (former § 12021), and shooting at an inhabited
dwelling (§ 246). The jury also found true that they each used a firearm (§ 12022.5) in
the commission of the murder and shooting counts. The trial court sentenced defendant
to an indeterminate term of 25 years to life on the murder charge and a consecutive
determinate term on the other charges.
Defendant appealed the conviction, asserting, among other issues, that the trial
court erred in instructing the jury with the natural and probable consequences principles.
We agreed because the prosecutor did not rely on this theory of liability and the jury was
not told that the target crime was firing at an inhabited dwelling. Nonetheless, we found
the error to be harmless. We stated that “[t]he jury found both defendants guilty of first
degree murder, and found that both defendants personally used firearms in the
commission of the murder.” We further explained that “[c]riminal liability was clearly
not premised on a derivative aiding and abetting theory, but rather on a direct finding that
each defendant had used the weapon found next to him to commit a premediated killing.”
Thus, we affirmed the conviction and remanded the matter for resentencing of both
defendants.
On August 15, 2019, following the enactment of Senate Bill No. 1437 (2017-2018
Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437), defendant filed a petition for
resentencing under section 1170.95. In the petition, defendant averred that a complaint or
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information had been filed against him that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and probable consequences doctrine;
he had been convicted of murder under one of those theories; and he could not now be
convicted of murder based on the changes made to section 188 and 189 by Senate Bill
1437. Defendant also checked boxes stating, in conclusory language, that he was not the
actual killer; that he did not, with the intent to kill, aid or abet the actual killer; and that
he was not a major participant in the felony acting with reckless indifference to human
life. He requested the trial court appoint him counsel in the proceeding, which the court
did.
The People filed a response arguing that defendant was ineligible for relief
because section 1170.95 was unconstitutional. Defendant’s appointed counsel filed a
reply.
On October 30, 2020, following argument from counsel, the trial court denied the
petition, finding defendant was ineligible for relief. The court explained its ruling by
quoting from this court’s opinion. In pertinent part, the court stated, “ ‘The jury found
both defendants guilty of first degree murder, and found that both defendants personally
used firearms in the commission of the murder. Criminal liability was clearly not
premised on a derivative aiding and abetting theory, but rather on a direct finding that
each defendant had used the weapon found next to him to commit a premeditated
killing. . . . [I]t is of no importance that the instructions on aiding and abetting could in
theory have been construed not to require a finding that the defendant actually killed,
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attempted to kill, or intended to kill. The evidence received leaves no doubt that the
jury’s verdict rested on a finding that the defendant killed or intended to kill.
Consistently with this reasoning, we have affirmed judgments despite analogous claims
of instructional error when the jury has specially found that the defendant personally used
a firearm, and when such a finding has necessarily implied that the jury believed the
defendant was the actual killer. [¶] . . . In this case, it was not defendant’s theory that was
rejected by the jury, but rather the prosecutor’s own rather tenuous theory that was never
even presented to the jury.’ ”
The trial court also considered the “spirit of [Senate Bill] 1437” and concluded
that it did not apply here since this court “determined that the evidence supporting [the]
actual killer theory is not only well supported, but the only rational supported thing.”
The court determined that defendant “could indeed have been convicted on the theory of
murder as it exists as of January 1, 2019.” Thus, defendant had failed to make a prima
facie showing that he was eligible for relief under section 1170.95 and the court denied
the petition based on the appellate record. The court reiterated that “because there has
been a court of appeals that has reviewed this very issue,” there was no “rational chance
that the jury rested their opinion on the natural and probable consequences theory.”
II
DISCUSSION
Defendant contends the trial court erred in denying his section 1170.95 petition
without an evidentiary hearing because he had made a prima facie showing in his petition
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that he was convicted of first degree murder under the natural and probable consequences
doctrine or the felony-murder rule. He further asserts the court “improperly engaged in
judicial factfinding by denying the petition at the second prima facie stage” based on this
court’s prior opinion from his direct appeal “without conducting an evidentiary hearing.”
The People respond the trial court did not err because it correctly concluded defendant, as
an actual killer, was ineligible for relief as a matter of law.
Effective January 1, 2019, the Legislature enacted Senate Bill 1437 (2017-2018
Reg. Sess.) which amended sections 188 and 189 to limit liability for felony murder and
abrogate the natural and probable consequences doctrine as applied to murder. (Stats.
2018, ch. 1015.) The bill redefined murder under section 188 to require that the principal
acted with malice aforethought. Now, “[m]alice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) The bill also
amended section 189 to provide that a defendant who was not the actual killer and did not
have intent to kill is not liable for felony murder unless he or she “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)(3).)
Senate Bill 1437 also enacted section 1170.95. To obtain relief pursuant to
section 1170.95, an offender must file a petition in the sentencing court setting forth his
eligibility under the section, including that he was prosecuted under a theory of felony
murder or murder under the natural and probable consequences doctrine, was convicted
of first or second degree murder following a trial or accepted a plea offer in lieu of a trial
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at which the petitioner could be convicted for first or second degree murder, but 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, subds. (a)(1)-(3); see § 1170.95,
subd. (b)(1)(A).) If a petition fails to comply with subdivision (b)(1), “the court may
deny the petition without prejudice to the filing of another petition . . . .” (§ 1170.95,
subd. (b)(2).) “Where the petition complies with subdivision (b)’s three requirements,
then the court proceeds to subdivision (c) to assess whether the petitioner has made ‘a
prima facie showing’ for relief. [Citation.] [¶] 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.’ [Citation.] . . . At the hearing
stage, ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.’ [Citation.]” (People v. Lewis
(2021) 11 Cal.5th 952, 960 (Lewis).)
Prior to our Supreme Court’s recent decision in Lewis, a number of courts
“read . . . section 1170.95, subdivision (c)’s two references to ‘a prima facie showing’ to
require two distinct, sequential inquiries: one ‘that petitioner “falls within the
provisions” of the statute,’ and a second ‘ “that he or she is entitled to relief.” ’ ”
(Lewis, supra, 11 Cal.5th at p. 961.) The Lewis court rejected this interpretation of
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section 1170.95, subdivision (c), and concluded that subdivision (c) describes only a
single prima facie showing. (Ibid.) The court held that “[c]onsidering subdivision (c)’s
language in the context of section 1170.95 as a whole [citation], subdivision (c) clearly
describes a single process.” (Id. at p. 962.) Therefore, under the statute, once a petitioner
files a facially sufficient petition laying out his or her eligibility under the section and
requests counsel, he or she is entitled to appointment of counsel and to be heard on the
subdivision (c) inquiry. (Id. at p. 970.)
In determining whether the petition has made a prima facie showing, after counsel
has been appointed, the trial court may examine the record of conviction “to distinguish
petitions with potential merit from those that are clearly meritless.” (Lewis, supra, 11
Cal.5th at p. 971.) “While the trial court may look at the record of conviction after the
appointment of counsel to determine whether a petitioner has made a prima facie case for
section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited. Like the
analogous prima facie inquiry in habeas corpus proceedings, ‘ “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. If so, the court must issue an order to show cause.” ’ [Citation.] ‘[A] court
should not reject the petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ [Citations.] ‘However, if the record, including the
court’s own documents, “contain[s] facts refuting the allegations made in the petition,”
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then “the court is justified in making a credibility determination adverse to the
petitioner.” ’ ” (Ibid.)
As part of its review, the court may consult the record of conviction in the case,
including any prior appellate opinion, subject to the caveat that “the probative value of an
appellate opinion is case specific, and ‘it is certainly correct that an appellate opinion
might not supply all answers.’ ” (Lewis, supra, 11 Cal.5th at p. 972.) The “trial court
should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.]” (Ibid.) “In sum, the parties can, and should, use the record of
conviction to aid the trial court in reliably assessing whether a petitioner has made a
prima facie case for relief under [section 1170.95,] subdivision (c).” (Ibid.)
In this case, the trial court denied defendant’s petition at the prima facie stage
under section 1170.95, subdivision (c). “A denial at that stage is appropriate only if the
record of conviction demonstrates that ‘the petitioner is ineligible for relief as a matter of
law.’ [Citations.] This is a purely legal conclusion, which we review de novo.” (People
v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978;
accord, People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142, review granted
Oct. 14, 2020, S264284.)
Defendant here filed a petition laying out his facial eligibility and the trial court
correctly appointed counsel. The parties filed several rounds of briefing and the court did
conduct a hearing. At the hearing, the trial court, relying on this court’s prior opinion
from defendant’s direct appeal, concluded defendant was ineligible for relief as a matter
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of law because he was an actual killer. The prior appellate opinion discloses that
defendant was convicted under the theory that he was an actual perpetrator who
personally fired a gun at the victim and committed the murder with malice. In light of the
jury’s firearm finding, our opinion from defendant’s direct appeal concluded that
defendant’s “[c]riminal liability was clearly not premised on a derivative aiding and
abetting theory, but rather on a direct finding that each defendant had used the weapon
found next to him to commit a premeditated killing.” Quoting People v. Mason (1991)
52 Cal.3d 909, 952, we explained that “ ‘[T]he evidence received leave[s] no doubt that
the jury’s verdict rested on a finding that the defendant killed or intended to kill.’ ”
Accordingly, we determined that instructing the jury with the natural and probable
consequences principles was harmless. We stated, “the jury ha[d] specifically found that
the defendant personally used a firearm, . . . such a finding has necessarily implied that
the jury believed the defendant was the actual killer.” Given the undisputed jury finding
that defendant personally used a firearm in the commission of first degree murder and the
prior appellate opinion showing defendant was convicted as an actual killer, defendant
was ineligible for relief as a matter of law. (See People v. Cornelius (2020) 44
Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 [reviewing court concluded
the jury implicitly found the defendant was the actual killer because it found he
personally and intentionally used a firearm to commit the crime, rendering the statutory
changes inapplicable to him].)
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The trial court here did not impermissibly engage in “ ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at
p. 972.) The court also did not evaluate the sufficiency of the evidence. (Id. at p. 974.)
Rather, the court quoted our opinion from defendant’s direct appeal in finding defendant
ineligible for relief as a matter of law. While defendant’s petition asserted facts which, if
accepted as true, fulfilled the requirements for relief, there were readily ascertainable
facts from the record demonstrating that, as a matter of law, he was not entitled to relief.
Therefore, the trial court did not err by not issuing an order to show cause and holding an
evidentiary hearing prior to ruling on the merits of defendant’s petition.
III
DISPOSITION
The order denying defendant’s section 1170.95 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
FIELDS
J.
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