People v. Jones CA2/3 ( 2021 )

Filed 12/29/21 P. v. Jones CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
THE PEOPLE, B308232
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA142596-02
v.
OMAR LATEEF JONES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Reversed and
remanded with directions.
Robert E. Boyce, 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,
Assistant Attorney General, Amanda V. Lopez and David E.
Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Omar Lateef Jones appeals from the trial court’s order
summarily denying his petition under Penal Code section
1170.95.1 That statute allows certain defendants convicted
of murder under the felony-murder rule or the natural and
probable consequences doctrine to petition the court to vacate
their convictions and for resentencing. Here, the trial court—
without appointing counsel or allowing briefing—found Jones
had failed to demonstrate his entitlement to relief. Because
we lack an adequate record to determine if the court’s error
in not appointing counsel for Jones and entertaining briefing
was harmless, we reverse and remand for further proceedings.
BACKGROUND
To say our record on appeal is sparse is an understatement.
The only item in the record that refers to the facts in this case
is a 1999 probation officer’s report. According to the report, at
about 3:25 a.m. on September 22, 1996, Larry Darnele Logan was
driving his car with Aaron Patrick Johnson in the passenger seat.
The car stalled at an intersection. Jones drove alongside Logan’s
car and stopped. Jones’s passenger John Levae Post said,
“What’s up, blood?,” produced a handgun, and fired two shots
into Logan’s car. Both Logan and Johnson were killed.
In October 1999, a jury found Jones guilty of the first
degree murder of both victims. The jury found true an allegation
that, in the commission of the crimes, a principal was armed
with a firearm. The jury also found true a special circumstance
of multiple murder. The trial court sentenced Jones to a term
of life without parole plus one year (for the firearm), as well as
a term of 25 years to life, plus one year (again, for the firearm),
1 References to statutes are to the Penal Code.
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to be served concurrently. We affirmed Jones’s conviction.
(People v. Jones (May 29, 2001, B137784) [nonpub. opn.].)
After Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437) took effect, Jones—representing himself—filed a
petition for resentencing under section 1170.95. Checking boxes
on a preprinted form, Jones declared under penalty of perjury
that he had been convicted of first or second degree murder under
the felony-murder rule or the natural and probable consequences
doctrine and could not now be convicted of first or second degree
murder because of changes made to sections 188 and 189 by
Senate Bill 1437. Jones checked boxes that he “was not the
actual killer” and “did not, with the intent to kill, aid, abet,
counsel, command, induce, solicit, request, or assist the actual
killer in the commission of murder in the first degree.” Jones
did not check the box that he was not a major participant in
the crime but instead wrote on the form, “I wasn’t a participant
at all in this crime.” Jones requested the appointment of counsel
during the resentencing process.
The superior court filed Jones’s petition on August 31,
2020. On September 3, 2020, the court issued a minute order
denying the petition. The order states, “Defendant is not present
in court, and not represented by counsel.” The order continues,
“Examination of the court file indicated that
aiding and abetting instructions were given.
The only theories of murder instructed were
express and implied malice. The only theories
of first degree murder instructed were
premeditation and deliberation and discharging
a firearm from a motor vehicle. No instructions
on natural and probable consequences doctrine
or felony murder were given. Premeditation
and deliberation require that defendant
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personally premeditate and deliberate, even
as an aider and abettor (People v. Chiu (2014)
59 Cal.4th 155). First degree drive-by murder
requires a specific intent to kill; i.e., express
malice (People v. Chavez (2004) 118
Cal.App.4th 379). Thus, by convicting
defendant of murder, the jury necessarily found
actual malice, express or implied. By finding
the murder to be of the first degree, the jury
necessarily found the petitioner acted with
express malice. [¶] A trial court may properly
look at the record of conviction, including jury
instructions given at trial, in determining
whether petitioner made the required
prima facie showing under Penal Code
section 1170.95 (People v. Gomez (2020) 52
Cal.App.5th 1). Where the jury instructions
given at petitioner’s trial conclusively
demonstrate as a matter of law that petitioner
was not convicted of murder under a natural
and probable consequences theory or felony
murder, petitioner has not made a prima facie
case for relief and the court may summarily
deny the petition under Penal Code section
1170.95(c) (People v. Soto (2020) 51 Cal.App.5th
1043). As a matter of law, petitioner is not
eligible for relief.”
DISCUSSION
Senate Bill 1437 took effect on January 1, 2019. (See
Stats. 2018, ch. 1015, § 4.) It limited accomplice liability under
the felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder to ensure a person’s
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sentence is commensurate with his individual criminal
culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile); People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis).)
Senate Bill 1437 amended the felony-murder rule by
adding section 189, subdivision (e). It provides that a participant
in the perpetration of qualifying felonies is liable for felony
murder only if the person: (1) was the actual killer; (2) was
not the actual killer but, with the intent to kill, acted as a
direct aider and abettor; or (3) was a major participant in
the underlying felony and acted with reckless indifference
to human life as described in section 190.2, subdivision (d). (See
Gentile, supra, 10 Cal.5th at p. 842.) It amended the natural
and probable consequences doctrine by adding subdivision (a)(3)
to section 188, which states that “[m]alice shall not be imputed
to a person based solely on his or her participation in a crime.”
(Gentile, at pp. 842-843; § 188, subd. (a)(3).)
Senate Bill 1437 also authorized, through new section
1170.95, an individual convicted of felony murder or murder
under the natural and probable consequences doctrine to petition
the sentencing court to vacate the conviction and be resentenced
on any remaining counts if he could not have been convicted of
murder because of Senate Bill 1437’s changes to the definition
of the crime. (See Lewis, supra, 11 Cal.5th at pp. 959-960;
Gentile, supra, 10 Cal.5th at p. 843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he
was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c) requires the
court to appoint counsel to represent the petitioner, if requested;
to direct the prosecutor to file a response to the petition and
permit the petitioner to file a reply; and to determine if the
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petitioner has made a prima facie showing that he is entitled
to relief. (See Lewis, supra, 11 Cal.5th at pp. 959-960.2)
In determining whether the petitioner has carried his
burden of making the requisite prima facie showing that he falls
within the provisions of section 1170.95 and is entitled to relief,
the superior court properly examines the record of conviction,
“allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th
at p. 971.) But “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 . . . factual
allegations were proved. If so, the court must issue an order to
show cause.” ’[3] . . . ‘However, 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.” ’ ” (Ibid.; see People v.
Daniel (2020) 57 Cal.App.5th 666, 675 [any error in denying
petition at prima facie stage without appointing counsel
is harmless if the record of conviction “ ‘conclusively
demonstrate[s]’ ” petitioner is ineligible for relief].)
2 In Senate Bill No. 775 (2021-2022 Reg. Sess.) the
Legislature made a number of changes to section 1170.95.
Effective January 1, 2022, the requirement that a court appoint
counsel for a petitioner who requests counsel appears in
subsection (b)(3) of the statute.
3 The court then holds an evidentiary hearing at which the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(1), (3).)
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In Lewis, our Supreme Court resolved a disagreement
among the courts of appeal and agreed with the analysis in
People v. Cooper (2020) 54 Cal.App.5th 106. The high court held,
once a petitioner files a facially sufficient petition requesting
counsel, the superior court must appoint counsel before
performing the prima facie review under section 1170.95,
subdivision (c): “[P]etitioners who file a complying petition
requesting counsel are to receive counsel upon the filing of
a compliant petition.” (Lewis, supra, 11 Cal.5th at pp. 961-963.)
Because Jones checked all the necessary boxes on his form
petition, the superior court erred by denying his petition without
first appointing counsel.
The opening brief and respondent’s brief in this appeal
were filed before our high court decided Lewis. The Attorney
General contends any error in denying Jones’s petition without
appointing counsel was harmless “because the petition would
have been denied regardless of what appointed counsel might
have argued.” The Attorney General states, “The jury’s verdicts,
along with the jury instructions that the court below properly
considered, show by themselves that appellant is ineligible
for resentencing as a matter of law . . . as to both murders.”
The Lewis Court held a superior court’s failure to appoint
counsel to represent a petitioner when assessing whether
he has made a prima facie showing of entitlement to relief
under section 1170.95, subdivision (c), is state law error only,
reviewable for prejudice under the harmless error standard of
People v. Watson (1956) 46 Cal.2d 818. (Lewis, supra, 11 Cal.5th
at pp. 973-974.) As we have said, section 1170.95 authorizes a
petition for resentencing only by individuals convicted of murder
under the felony-murder rule or the natural and probable
consequences doctrine. Accordingly, notwithstanding Jones’s
having checked boxes on the form claiming to have been
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convicted on one of those theories, he is not entitled to relief
if the record of conviction—including the jury instructions—
shows the jury was not instructed on either of those theories.
(See People v. Soto (2020) 51 Cal.App.5th 1043, 1055-1056,
abrogated on other grounds in Lewis [trial court may rely on
jury instructions when determining whether petitioner has
made a prima facie showing of entitlement to relief]; cf. People v.
Nguyen (2020) 53 Cal.App.5th 1154, 1157, 1167-1168 [petitioner
not entitled to relief when he was convicted as direct aider and
abettor, and not of felony murder or murder under a natural
and probable consequences theory].)
But we have no record. We have no jury instructions
or reporter’s transcript of closing arguments. The trial court
obviously had records, as it referred to its “[e]xamination of the
court file.” However, as Jones’s appellate counsel points out,
“The documents relied on by the trial court in denying the section
1170.95 petition are not part of the record on appeal and could
not be located by the Superior Court.”
The clerk’s transcript contains only the information, the
verdict forms (which say only that the jury convicted Jones of
the first degree murder of both victims and found the “principal
armed” allegation and multiple murder special circumstance
true), a minute order of the November 1999 sentencing, the
December 1999 abstract of judgment, Jones’s August 2020
petition, a minute order of the court’s September 3, 2020 denial
of the petition, and Jones’s notice of appeal. The Certificate
of Clerk states the clerk conducted searches “of the court file,”
“the courtroom,” and “the clerk’s office” “to find the missing
document(s).” The supplemental clerk’s transcript contains
only the probation officer’s report.
As the superior court denied Jones’s petition without
briefing, three days after it was filed, the district attorney never
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had an opportunity to submit a response or exhibits, such as the
instructions given to Jones’s jury. Nor has the Attorney General
filed any motion to augment the record or otherwise to provide us
with the jury instructions. In short, without a record, we cannot
conduct a review of the challenged order. We therefore reverse
the order summarily denying Jones’s petition and remand the
matter for the court to appoint counsel and permit briefing.
DISPOSITION
We reverse the order denying Omar Lateef Jones’s petition
for resentencing and remand the case for further proceedings
consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
MATTHEWS, J.

Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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