People v. Blair CA1/5 ( 2021 )

Filed 12/3/21 P. v. Blair CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v. A161903
MARCUS QUINN BLAIR, JR.,
(Solano County
Defendant and Appellant.
Super. Ct. No. FCR201802)
Marcus Quinn Blair, Jr. appeals from the trial court’s
denial of his petition for resentencing under Penal Code section
1170.95.1 Section 1170.95 provides for resentencing of
individuals convicted of murder under a felony murder or natural
and probable consequences theory if they could no longer be
convicted of murder under January 1, 2019 amendments to the
Penal Code. Blair contends that the court was required to accept
his allegations as true, and the court relied on improper fact-
finding in denying his petition. We conclude that the court
correctly determined Blair was ineligible for resentencing, and we
therefore affirm.
1 All undesignated statutory references are to the Penal
Code.
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BACKGROUND
A.
To be convicted of murder, a jury must ordinarily find that
the defendant acted with the requisite mental state, known as
“ ‘malice aforethought.’ ” (People v. Chun (2009) 45 Cal.4th 1172,
1181 (Chun), quoting section 187, subdivision (a).) Until
recently, the felony murder rule provided an exception that made
“a killing while committing certain felonies murder without the
necessity of further examining the defendant’s mental state.”
(Chun, supra, 45 Cal.4th at p. 1182.) Under a separate rule
known as the natural and probable consequences doctrine, a
“ ‘ “person who knowingly aids and abets [the] criminal conduct
[of another person] is guilty of not only the intended crime . . . but
also of any other crime the [other person] actually commits . . .
that is a natural and probable consequence of the intended
crime.” ’ ” (People v. Chiu (2014) 59 Cal.4th 155, 161.)
Senate Bill No. 1437 ((2017-2018 Reg. Sess.), Stats. 2018,
ch. 1015), which became effective January 1, 2019, raised the
level of culpability required for murder liability to be imposed
under these theories. (See Stats. 2018, ch. 1015, § 1.) Senate Bill
No. 1437 amended the definition of malice in section 188 to
provide that, “[m]alice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3);
Stats. 2018, ch. 1015, § 2.) The bill also amended section 189,
which defines the degrees of murder, to limit murder liability
based on felony murder or a natural and probable consequences
theory to a person who: (1) was the actual killer; (2) though not
the actual killer, acted “with the intent to kill” and “aided,
abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer” in the commission of first degree
murder; or (3) 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); Stats. 2018,
ch. 1015, § 3.)
2
Finally, Senate Bill No. 1437 added section 1170.95, which
provides that “[a] person convicted of felony murder or murder
under a natural and probable consequences theory may file a
petition with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts.” (§ 1170.95, subd. (a); Stats. 2018, ch.
1015, § 4.) The individual may file a petition if three conditions
are met: “(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was
convicted of first degree or second degree murder following a trial
or accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder. [¶]
(3) The petitioner 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); see People v. Lewis (2021)
11 Cal.5th 952, 959-960 (Lewis).) Under section 1170.95,
subdivision (b), the petition must include a declaration that the
petitioner is eligible for relief based on the requirements set forth
in subdivision (a), the superior court case number and year of the
conviction, and a statement indicating whether the petitioner
requests the appointment of counsel. (§ 1170.95, subd. (b)(1).)
If the petitioner has complied with these requirements, the
court appoints counsel (if requested), receives briefing from the
parties, and determines whether the petitioner has made a
“prima facie showing” for relief (§ 1170.95, subd. (c); Lewis, supra,
11 Cal.5th at pp. 960, 966). If so, the court must issue an order to
show cause and hold an evidentiary hearing at which the burden
is on the prosecution to prove that the petitioner is ineligible for
relief. (Lewis, supra, 11 Cal.5th at p. 960.)
B.
A jury convicted Blair of second degree murder (§§ 187,
subd. (a), 189, subd. (b)) and, as relevant here, found true an
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allegation that he personally and intentionally discharged a
firearm, causing the victim’s death (§ 12022.53, subd. (d)). (See
People v. Blair (Dec. 23, 2004, A104765) [nonpub. opn.] (Blair).)
Blair’s section 1170.95 petition alleged that the information
filed against him allowed the prosecution to proceed under a
felony murder theory; that he was convicted of murder pursuant
to the felony murder rule; and that he could not now be convicted
of murder based on the January 1, 2019 amendments to sections
188 and 189. In addition, he alleged that he was not a major
participant in the felony or he did not act with reckless
indifference to human life during the course of the crime or
felony.
The court appointed counsel, who filed a reply brief
providing the following factual summary:
On August 26, 2002, Leroy McCain was
shot at and killed nearby his apartment
building. Appellant testified that he went
to McCain’s apartment that day and got
into a fight with him. As he was leaving,
he felt a bottle, someone hit him with, on
his head. Appellant feared for his life, he
fled to his car, retrieved a rifle, and walked
back toward McCain. Appellant thought
McCain was going to attack him, so he
started firing as McCain ran away and
until McCain was out of sight. Then,
Appellant left.
Blair’s brief also incorporated more detailed statements of facts
from his opening brief and the respondent’s brief in his direct
appeal. According to those summaries, McCain died from a
single gunshot.
At the hearing on Blair’s petition, his counsel
acknowledged that Blair “was the actual shooter.” The trial court
concluded that Blair had failed to make out a prima facie case of
eligibility for relief because “[t]he evidence at trial appears to
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establish that defendant was the sole participant in the
underlying event and that he discharged a firearm, causing
death.”
DISCUSSION
Blair contends that the trial court erred in determining
that he had failed to establish a prima facie case. On our
independent review (People v. Jenkins (2021) 70 Cal.App.5th 924,
933), we disagree.
Blair argues that he met his prima facie burden based on
the allegations in his petition, that the court was required to
accept his allegations as true, and that the court improperly
engaged in factfinding in denying his petition. He is correct that,
at that stage, the trial court may not “engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion. ’ ”
(Lewis, supra, 11 Cal.5th at p. 972.) However, as our Supreme
Court recently held in Lewis, the court may consider the record of
conviction, including an appellate decision in a direct appeal from
the conviction, at the prima facie stage. (Id. at pp. 970-972.)
Thus, “ ‘if the record, including the court’s own documents,
“contain[s] facts refuting the allegations made in the petition,”
then “the court is justified in making a credibility determination
adverse to the petitioner.” ’ ” (Id. at p. 971; see also People v.
Davenport (2021) __ Cal.App.5th __, __ (2021 Cal.App.LEXIS 945
at [*5]-[*6]) [trial court may consider “ ‘readily ascertainable
facts’ ” from the record of conviction].)
Here, the trial court correctly concluded that Blair failed to
establish a prima facie case of eligibility for resentencing. Based
on the undisputed facts, under current law, he would still be
liable for murder because he was the actual killer. (§ 189, subd.
(e)(1).) There is no dispute that in convicting him of second-
degree murder, the jury found that Blair had caused the victim’s
death by personally and intentionally discharging a firearm. (See
Blair, supra, A104765).) According to the facts he presented in
his trial court briefing, Blair fired at the victim with a rifle and
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the victim died of a single gunshot. Blair conceded he “was the
actual shooter.” He has not suggested that any other perpetrator
was involved in the killing or otherwise disputed that he was the
actual killer. (See People v. Tarkington (2020) 49 Cal.App.5th
892, 899 [petitioner was “the actual killer” where jury found the
defendant personally used a deadly weapon and “the murder
involved a single perpetrator” and “was not a situation in which
multiple persons carried out the attack”], abrogated on another
ground by Lewis, supra, 11 Cal.5th at pp. 963-965). Thus, Blair’s
own version of the facts established that he was the actual killer,
and we reject his contention that the court engaged in improper
fact-finding.2
Blair further argues that “[t]here were no facts in the trial
court record that, as a matter of law, refuted [his] assertion that
he had been convicted of . . . murder on a theory of felony
murder” (italics omitted). Blair also contends that the fact that
the jury found that he personally and intentionally discharged a
firearm does not establish that he acted with actual malice. (See
People v. Offley (2020) 48 Cal.App.5th 588, 598.) Neither of these
points negates the conclusion that Blair could be found liable for
murder under current law because he was the actual killer. (See
§ 189, subd. (e)(1).)
DISPOSITION
The trial court’s order denying the petition is affirmed.
2 Blair now contends that it was improper for the trial court
to rely on the statements of facts attached as exhibits to his trial
court reply brief because the statements were hearsay. However,
he waived this objection by attaching and incorporating those
statements into his briefing in support of his petition. (Cf.
Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 725-726
[appellant forfeited hearsay objection by failing to raise it in trial
court].)
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_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
NEEDHAM, J.
A161903
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