People v. Jones CA2/1 ( 2021 )

Filed 12/7/21 P. v. Jones CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B311768
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. BA317885)
v.
DANTE DWAN JONES,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Curtis B. Rappe, Judge. Affirmed.
Dante Dwan Jones, in pro. per.; Cheryl Lutz, under
appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
____________________________
Dante Dwan Jones shot Christian Starr during an incident
at a market on February 23, 2007. A jury convicted him of
attempted murder and found true allegations that he had
personally used and intentionally discharged a firearm which
proximately caused great bodily injury within the meaning of
Penal Code section 12022.53, subdivisions (b), (c), and (d), and
personally inflicted great bodily injury within the meaning of
section 12022.7, subdivision (c)(8).1 Based on the jury’s verdict
and Jones’s admission of a prior juvenile adjudication for robbery,
the trial court sentenced Jones to 39 years to life in state prison.
On January 13, 2021, Jones petitioned the trial court for
resentencing under section 1170.95, alleging that he had been
convicted of attempted murder under a theory that he could no
longer be convicted under because of changes made to sections
188 and 189 effective January 1, 2019 by Senate Bill No. 1437.
(See Stats. 2017, ch. 1015, §§ 1-4.) The trial court declined to
appoint counsel, concluding instead that Jones was ineligible for
relief under section 1170.95 as a matter of law, and denied
Jones’s petition on January 19, 2021.
The landscape of the law applicable to Jones’s appeal has
changed significantly since the trial court entered its order. In
July, the Supreme Court issued its opinion in People v. Lewis
(2021) 11 Cal.5th 952 (Lewis). And in October, the Governor
signed Senate Bill No. 775 (S.B. 775), which will become effective
on January 1, 2022.
Read together, Lewis and S.B. 775 establish that the trial
court erred when it denied Jones’s petition without appointing
counsel. Nevertheless, we conclude that the trial court’s error
1Further undesignated statutory references are to the
Penal Code.
2
was harmless under People v. Watson (1956) 46 Cal.2d 818(Watson). We will affirm the trial court’s order.
BACKGROUND
The facts and procedural background regarding Jones’s
conviction are from the opinion in Jones’s direct appeal.
A. The Shooting
“[O]n February 23, 2007, Christian Starr was shot at the
Three Star Market in Los Angeles. Owner Debbie Lee testified
that there were eight surveillance cameras in her store, which
had only one entrance/exit door. After the shooting, she met with
Los Angeles Police Department (LAPD) Detective John Ayala and
other officers and showed them the surveillance video of the
shooting, which was transferred to a DVD and was played for the
jury. Still photos printed from the video were also admitted into
evidence.
“LAPD Officer Miguel Reynoso responded to the Three Star
Market on the day of the shooting, and with other officers
watched part of the surveillance video. Officer Reynoso saw a
freeze frame of a man walking toward one of the cameras away
from the shooting victim lying on the ground, and identified the
man as Jones. Officer Reynoso was assigned to the area, had (a
year and a half or two years earlier) conducted a traffic stop of a
vehicle in which Jones was a passenger, and had seen him in the
neighborhood a number of times.
“Officer Reynoso went to Jones’s residence, where a few
hours later he saw a white Chevy Caprice pull up. He broadcast
the information to other officers, who conducted a traffic stop of
the Caprice. Jones was in the front passenger seat and was
taken into custody. He was wearing the same clothing that
appeared in the video. The search recovered a five-shot revolver
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loaded with two live rounds, but containing no empty casings,
which would have remained inside the gun after it was shot.
“Detective Ayala testified that he was the investigating
officer in the case, and that he had gone to see Starr in the
hospital on the night of the shooting. Starr was unconscious.
The parties stipulated that Starr suffered great bodily injury as a
result of the gunshot wound.
“Jones testified on his own behalf for the defense. He
admitted he was the man shown in the surveillance video
shooting Starr. He knew Starr from around the neighborhood,
and had no problems with him before November 12, 2006. On the
evening of that day Jones had gone to an apartment building to
mediate a dispute between a friend and another man. While
Jones was outside talking to the two men, Starr intervened, and
a fist fight ensued. Starr pulled a gun and shot Jones in the leg.
Starr shot Jones again as Jones was running away. Jones ran
home and the police took him to the hospital in an ambulance.
No police officer ever asked him who shot him. After this
incident, Jones bought on the street the gun that he used to shoot
Starr, and kept it with him for protection everywhere he went.
“On February 23, 2007, Jones went to the Three Star
Market to buy an iced tea. As he walked toward the cash
register, he saw Starr entering the store and thought that Starr
smirked at him. He followed Starr to the back of the market, and
when Starr reached into his pocket, Jones thought Starr was
going to shoot him, and he drew his gun and shot Starr first.
Jones ran home. He took the empty shell casing out of his gun.
He hid the gun under the car seat because it was illegal and he
hoped the police wouldn’t find it.
4
“In rebuttal, LAPD Detective Enrique Robledo testified
that he had investigated the November 2006 shooting and had
interviewed Jones some time afterward. Jones told him that a
white car had driven by and someone shot at him, and Jones
didn’t see who it was. Although Detective Robledo gave Jones his
telephone number, Jones never contacted him.” (People v. Jones
(Feb. 10, 2010, B211456) pp. 3-4 [nonpub. opn.] (Jones I).)
B. Jones’s Trial
“An amended information filed May 18, 2007 charged Jones
with attempted murder in violation of . . . sections 664 and 187,
subdivision (a), and alleged that the attempted murder was
committed willfully, deliberately, and with premeditation under
section 664, subdivision (a). The information further alleged that
Jones personally used and intentionally discharged a firearm
which proximately caused great bodily injury within the meaning
of section 12022.53, subdivisions (b), (c)[,] and (d), and personally
inflicted great bodily injury within the meaning of section
12022.7, subdivision (a) making the offense a serious felony
within the meaning of 1192.7, subdivision (c)(8). The information
also alleged that Jones had a prior juvenile adjudication for
robbery, pursuant to sections 667, subdivisions (b) through (i),
and 1170.12[,] subdivisions (a) through (d). Jones pleaded not
guilty and denied the special allegations.
“The trial court granted Jones’s motion to bifurcate trial of
the prior conviction allegation, and Jones admitted the prior
conviction allegation as true. After a two-day trial, a jury
convicted Jones of attempted murder, but found not true the
allegation that Jones committed the attempted murder willfully,
deliberately, and with premeditation. The jury also found the
weapon allegations to be true.
5
“The trial court sentenced Jones to state prison for 39 years
to life: 14 years on count 1 (attempted murder) (the middle term,
7 years, doubled pursuant to sections 667, subdivisions (b)
through (i), and 1170.12, subdivisions (a) through (d)), plus a
consecutive 25-years-to-life term under section 12022.53,
subdivision (d). The court imposed, and then stayed, a 20-year
enhancement under section 12022.53, subdivision (c).” (Jones I,
supra, B211456 at p. 2.)
We affirmed the trial court’s judgment. (Jones I, supra,
B211456 at p. 12.)
C. Jones’s Section 1170.95 Petition for Resentencing
Jones filed a petition under section 1170.95 on January 13,
2021, asking the trial court to resentence him for his conviction
because, he alleged, he was convicted of attempted murder under
the natural and probable consequences doctrine or the felony
murder rule and he could no longer be convicted of first or second
degree attempted murder because of changes made to sections
188 and 189 by Senate Bill No. 1437 effective January 1, 2019.
The trial court summarily denied Jones’s petition on January 19,
2021, without appointing counsel.
In its order denying Jones’s petition, the trial court
explained that it had reviewed the jury instructions given in
Jones’s matter, and that the jury was instructed that it must
conclude that Jones acted with intent to kill the victim to find
him guilty of attempted murder: “The court’s review of the jury
instructions given contains no instructions on either [the natural
and probable consequences doctrine or the felony murder rule].
These instructions required the jury to find that he acted with
intent to kill the victim. Furthermore, he was prosecuted as the
direct perpetrator of the attempted murder.”
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The trial court denied Jones’s petition for two reasons.
First, the trial court concluded that section 1170.95 did not apply
to convictions for attempted murder. Second, the trial court
concluded that section 1170.95 did not apply “where the
defendant was tried on the theory that he was the direct and only
perpetrator, and the natural and probable consequences doctrine
was not involved.”
Jones filed a timely notice of appeal and this court
appointed counsel for him. Jones’s appellate counsel filed a brief
raising no issues and requesting that we independently review
the record pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende). She notified Jones that she would be filing the brief and
that Jones could file a supplemental brief with this court. Jones
filed a supplemental brief contending that the trial court erred
when it denied his petition because he contends that the jury was
instructed on the natural and probable consequences doctrine.
D. Post-Appeal Legal Developments
1. Lewis
While Jones’s appeal was pending here, the Supreme Court
issued its opinion in Lewis, supra, 11 Cal.5th 952. In that
opinion, the court concluded that “petitioners are entitled to the
appointment of counsel upon the filing of a facially sufficient
petition [citation] 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.’ ”
(Id. at p. 957.) The trial court’s failure to appoint counsel, the
Supreme Court concluded, was subject to a harmless error
analysis under Watson, supra, 46 Cal.2d 818. (Lewis, at pp. 957-
958.)
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2. S.B. 775
On October 5, 2021, the Governor signed S.B. 775, which
will become effective on January 1, 2022. (Cal. Const., art. IV,
§ 8, subd. (c); Gov. Code, § 9600, subd. (a).) As pertinent to this
appeal, S.B. 775 amends section 1170.95 to include as eligible for
resentencing persons convicted of “attempted murder under the
natural and probable consequences doctrine.” (See Stats. 2021,
ch. 551, § 2, subd. (a).)
E. Request for Supplemental Briefing
Based on the enactment of S.B. 775, we requested
supplemental briefing from the parties regarding the
significance, if any, of S.B. 775 in this case and set a briefing
schedule on that question. Counsel for Jones declined to file a
supplemental brief.
DISCUSSION
Because Jones’s appeal is not from his conviction, he is not
entitled to our independent review of the record pursuant to
Wende or its federal constitutional counterpart, Anders v. State of
Cal. (1967) 386 U.S. 738. (See People v. Kelly (2006) 40 Cal.4th
106, 119; People v. Serrano (2012) 211 Cal.App.4th 496, 503
(Serrano); Pennsylvania v. Finley (1987) 481 U.S. 551, 559.)2 He
is entitled, however, to file a supplemental brief and, if he files
2 Under Serrano, in a criminal appeal in which Wende does
not apply, counsel who finds no arguable issues is still required to
(1) inform the court that counsel has found no arguable issues to
be pursued on appeal; (2) file a brief setting out the applicable
facts and law; (3) provide a copy of the brief to appellant; and (4)
inform the appellant of the right to file a supplemental brief.
(Serrano, supra, 211 Cal.App.4th at p. 503, citing
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544.)
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such a brief, to our review of his contentions. (See Serrano, at p.
503.) We therefore consider Jones’s contentions in turn.
At the outset, we note that the trial court’s order denying
Jones’s petition was not erroneous when it was filed. The error
we find is a function of the enactment of S.B. 775, which will go
into effect on January 1, 2022.
Section 1170.95 allows one “convicted of felony murder or
murder under a natural and probable consequences theory” to
“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).)
“[P]etitioners are entitled to the appointment of counsel upon the
filing of a facially sufficient petition [citation] and . . . 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.’ ” (Lewis, supra, 11 Cal.5th at p. 957.)
Because Jones’s petition alleged that he was convicted of
attempted murder and because section 1170.95 applies only to
murder convictions, when it was filed the petition was not facially
sufficient and could have been denied for that reason alone. (See
People v. Munoz (2019) 39 Cal.App.5th 738, review granted Nov.
26, 2019, S258234.) S.B. 775, however, amends section 1170.95
to expressly include as eligible for resentencing those convicted of
“attempted murder under the natural and probable consequences
doctrine.” 3 (Stats. 2021, ch. 551, § 2, subd. (a).)
3 S.B. 775 will not go into effect until January 1, 2022.
“New legislation generally applies to all judgments which are not
final as of the effective date of the new statute. [Citations.]
Where it is unlikely that a judgment will be final by the effective
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S.B. 775 renders Jones’s petition for resentencing facially
sufficient to invoke the trial court’s duty to appoint counsel to
represent Jones under section 1170.95, subdivision (b)(3).
Because Lewis established that a section 1170.95 petitioner is
entitled to the appointment of counsel upon the filing of a facially
sufficient petition, the trial court’s denial of Jones’s petition
before appointing counsel was erroneous under section 1170.95 as
it will be effective January 1, 2022. (See Lewis, supra, 11 Cal.5th
at p. 957.)
Lewis also instructs us to consider whether the trial court’s
error was prejudicial under Watson, supra, 46 Cal.2d 818. We
conclude the error was harmless. Jones contends in his
supplemental brief that the jury was instructed on the natural
and probable consequences doctrine and that it is possible that
the jury could have convicted him under that theory. Jones’s
argument demonstrates that he misunderstood the jury
instructions.
As the trial court explained in its order denying Jones’s
petition, Jones was “tried on the theory that he was the direct
and only perpetrator, and the natural and probable consequences
doctrine was not involved.”
Jones’s argument relies on the inclusion of CALCRIM No.
3150 in his jury instructions because that instruction includes
date of new legislation, courts have remanded matters to the trial
courts so that the new statute can be applied after its effective
date.” (People v. Montes (2021) ___ Cal.App.5th ___, ___
[B312152].) It is clear, however, that our order will not be final
until after S.B. 775’s effective date. Following our colleagues in
Division 8, “[t]o promote judicial economy and efficiency, we opt
to apply the revised provisions set forth in [S.B.] 775 to
appellant’s case now.” (Montes, at p. ___.)
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the words “natural and probable consequences.” CALCRIM No.
3150, however, is an instruction regarding the allegations that
Jones personally and intentionally discharged a firearm and
whether, in doing so, he caused great bodily injury. The
instruction is entirely irrelevant without a predicate guilty
verdict on Jones’s attempted murder charge. Indeed, the first
sentence of CALCRIM No. 3150 as it was delivered to Jones’s
jury is: “If you find the defendant guilty of [attempted murder],
you must then decide whether the People have proved the
additional allegations that the defendant personally and
intentionally discharged a firearm during that crime and, if so,
whether the defendant’s act caused great bodily injury.” Several
paragraphs later (still in CALCRIM No. 3150), the jury was
instructed that “[a]n act causes great bodily injury if the injury is
the direct, natural, and probable consequence of the act and the
injury would not have happened without the act. A natural and
probable consequence is one that a reasonable person would
know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider
all the circumstances established by the evidence.”
That CALCRIM No. 3150 contains the words “natural and
probable consequences” is irrelevant for purposes of Jones’s
section 1170.95 petition. The instruction demonstrates that the
words “natural and probable consequences” were not related to
whatever findings the jury would be required to make regarding
the attempted murder charge. Indeed, the jury was instructed
that to find Jones guilty of attempted murder, it must find that
the People had proven that “[t]he defendant took at least one
direct but ineffective step toward killing another person” and that
“[t]he defendant intended to kill that person.” (Italics added.)
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The record of conviction in this matter establishes that
Jones was neither tried nor convicted of attempted murder under
a natural and probable consequences theory. Jones cannot
establish that he “could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019,” as required by amended section
1170.95, subdivision (a)(3). (Stats. 2021, ch. 551, § 2.) On that
basis, as a matter of law Jones cannot establish that he is
entitled to relief under any version of section 1170.95. The trial
court’s error—created by S.B. 775—is harmless. (See Watson,
supra, 46 Cal.2d at p. 836.)
Although Jones is not entitled to Wende review on this
appeal, we have examined the entire record and are satisfied that
Jones’s counsel has fully complied with her responsibilities under
Wende and Serrano. (See Wende, supra, 25 Cal.3d at p. 441;
Serrano, supra, 211 Cal.App.4th at p. 503.) No arguable issues
exist.
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J. BENDIX, J.
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