People v. Swaving CA4/3 ( 2021 )

Filed 12/20/21 P. v. Swaving CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G060316
v. (Super. Ct. No. C-55809)
HANS JACQUEHENRI SWAVING, OPINIO N
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Gary S. Paer. Affirmed.
Victoria H. Stafford, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
We appointed counsel to represent Hans Jacquehenri Swaving on appeal.
Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her
client but advised the court she found no issues to argue on his behalf.
Counsel filed a brief following the procedures outlined in People v. Wende
(1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that
sets forth a summary of proceedings and facts but raises no specific issues. Under these
circumstances, the court must conduct an independent review of the entire record. When
the appellant himself raises specific issues in a Wende proceeding, we must expressly
address them in our opinion and explain why they fail. (People v. Kelly (2006)
40 Cal.4th 106, 110, 120, 124.)
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel did
not provide the court with information as to any issues that might arguably support an
appeal. Counsel only asked this court to conduct an independent review of the record
pursuant to Wende, supra, 25 Cal.3d 436.
We gave Swaving 30 days to file written argument on his own behalf, and
he did. We will discuss his contentions anon.
We have independently reviewed the record in accordance with our
obligations under Anders and Kelly. We found no arguable issues on appeal. We affirm
the postjudgment order.
FACTS
In 1987, a jury convicted Swaving of first degree murder with special
circumstance findings he committed the murder during the commission of a burglary and
a robbery and used a firearm. (People v. Swaving (June 30, 1989, G005901) [nonpub.
opn.] (Swaving).) The jury also convicted him of two counts of attempted murder,
second degree burglary, and robbery with firearm use. The trial court sentenced Swaving
to a term of life without parole and concurrent sentences on the remaining counts.
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As relevant here, the trial court instructed the jury as follows: “A special
circumstance must be proved beyond a reasonable doubt. [¶] If you have a reasonable
doubt as to whether a special circumstance is true, it is your duty to find that it is not true.
[¶] If . . . Swaving, was an [aider and abettor] but not the actual killer, it must be proved
beyond a reasonable doubt that he intended to aid in the killing of a human being before
you are permitted to find the alleged special circumstance of that first degree murder to
be true as to . . . Swaving.”
We affirmed Swaving’s conviction. (Swaving, supra, G005901.)
Admitting the issue was close, the majority found substantial evidence supported the
jury’s conclusion Swaving intended to kill. The majority indicated the decision turned on
the evidence of Swaving’s conduct immediately after the killing and his later violent
actions toward the police. Justice Edward J. Wallin filed a concurring and dissenting
opinion in which he strongly disagreed with the majority’s conclusion there was
substantial evidence of intent to kill to support the special circumstance findings. He
indicated the majority’s assertion that Swaving’s post-shooting behavior established his
intent that the victim die belied logic.
In 2019, Swaving in propria persona filed a petition for resentencing
pursuant to Penal Code section 1170.95. The trial court appointed counsel to represent
Swaving. The prosecution filed responses to the petition.
At a hearing, Swaving’s counsel submitted the matter based on the trial
court’s tentative ruling. Following the hearing, the court denied the petition. The court
found Swaving ineligible for relief on the ground the jury found he had the intent to kill,
which at the time was a required element of the special circumstance findings. Swaving
timely appealed.
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In his supplemental brief, Swaving insists he did not have an intent to kill.
He indicates he was using methamphetamines at the time of the crime and has since been
diagnosed with bipolar disorder. He asks for “a second chance” citing how his behavior
improved during his incarceration.
DISCUSSION
Penal Code section 1170.95, subdivision (a), allows “[a] person convicted
of felony murder or murder under a natural and probable consequences theory [to] file a
petition” to seek to have that “murder conviction vacated and to be resentenced on any
remaining counts” if certain conditions are met. The statute did not change or alter the
law regarding the criminal liability of direct aiders and abettors of murder because such
persons necessarily “know and share the murderous intent of the actual perpetrator.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1118; see People v. Chiu (2014) 59 Cal.4th
155, 167 [direct aider and abettor “acts with the mens rea required for first degree
murder”] superseded by statute in part as stated in People v. Gentile (2020) 10 Cal.5th
830, 849.) One who directly aids and abets another who commits murder is thus liable
for murder under the new law just as he or she was liable under the old law.
We accept as true Swaving’s contentions about his methamphetamine use
and bipolar diagnosis, but these facts do not make Swaving eligible for relief under Penal
Code section 1170.95. We agree with the trial court’s finding Swaving was ineligible for
relief because the jury found he had the intent to kill. (People v. Lewis (2021) 11 Cal.5th
952, 971 [after appointment of counsel court may consider record of conviction in
determining whether petitioner made prima facie showing].)
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DISPOSITION
The postjudgment order is affirmed.
O’LEARY, P. J.
WE CONCUR:
GOETHALS, J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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