People v. Brown CA3 ( 2020 )

Filed 11/16/20 P. v. Brown CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C089260
Plaintiff and Respondent, (Super. Ct. No. 93F1202)
v.
CURTIS EDWARD BROWN,
Defendant and Appellant.
Defendant Curtis Edward Brown appeals from the trial court’s order denying his
petition for resentencing pursuant to Penal Code section 1170.95 and Senate Bill No.
1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437).1 Defendant argues the trial court
erred by summarily denying his petition on the merits and failing to appoint counsel and
receive briefing prior to determining his eligibility for resentencing. We affirm the trial
court’s order.
1 Undesignated statutory references are to the Penal Code.
1
I. BACKGROUND
A jury found defendant and a co-defendant, Brian Franklin Thames, guilty of first-
degree murder (§ 187, subd. (a)) and attempted murder (§§ 187, subd. (a), 664, subd. (a))
in May 1994. The jury found true allegations that Thames used a deadly weapon in the
commission of the murder, acted willfully and with premeditation in the commission of
the attempted murder, and inflicted great bodily injury in the attempted murder. The jury
found not true allegations that defendant acted willfully and with premeditation in the
commission of the attempted murder. Defendant was sentenced to 25 years to life for the
murder, with an additional 16 years for the attempted murder and other enhancements.
Defendant and Thames appealed their convictions and another panel of this court
affirmed. (People v. Thames, et al. (Nov. 30, 1995, C018384) [nonpub. opn.].)
A. The Murder and Attempted Murder
As set forth in our opinion, the evidence at trial showed that Thames and
defendant set out to commit acts of violence against unsuspecting strangers on the night
of January 1, 1993. (People v. Thames, supra, C018384, at pp. 2-8, 24-25, 27-28.)
Thames set things in motion with an altercation in a bar, which caused him and defendant
to be ejected. (Id. at p. 2.) Thames then precipitated an incident with two other men in a
parking lot, challenging them to a fight and threatening to kill them. (Id. at pp. 2-3.)
Thames and defendant eventually left the parking lot in a car driven by L.C. (Id. at p. 3.)
Defendant was sitting in the front passenger seat of the car, and Thames was seated in the
back. (Id. at p. 6.) They drove past a group of people. (Ibid.) One of the men—Thames
or defendant—wanted to see where the group was going. (Ibid.) When they were unable
to find the group again, Thames said, “ ‘They were lucky.’ ” (Ibid.)
R.G. was walking down Gold Street around the same time. (People v. Thames,
supra, C018384, at p. 3.) Two men jumped out of a car and started beating him up.
(Ibid.) The men were laughing and made no attempt to rob him. (Ibid.) R.G. suffered
wounds to his cheek and neck caused by a sharp instrument. (Ibid.)
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That same night, D.P. saw two men running down a side street towards a car
matching the description of the one L.C. was driving. (People v. Thames, supra,
C018384, at p. 5.) One of the men had a hairstyle similar to the one Thames favored.
(Id. at pp. 2, 5.) Shortly thereafter, D.P. saw a man stumbling down the hill coming from
the same direction as the two men. (Id. at p. 5.) The man made gurgling noises and
collapsed on the street. (Ibid.) A short time later, Donald Dobbs was found lying in a
pool of blood nearby. (Ibid.) Dobbs suffered two stab wounds, one to the cheek and one
to the neck. (Ibid.) The wound to Dobbs’s neck perforated his carotid artery, causing
death. (Ibid.)
Police interviewed L.C. (People v. Thames, supra, C018384, at p. 5.) Taken
together, L.C.’s testimony and the testimony of the police officer who interviewed her
established that L.C. drove Thames and defendant down Gold Street, where they saw a
man (R.G.) walking towards a liquor store. (Id. at p. 6.) One of the men instructed L.C.
to stop the car. (Ibid.) When she did so, both jumped out and ran behind the car. (Ibid.)
When they returned, they were “very excited.” (Ibid.) Defendant said he knocked the
man out with one punch. (Ibid.) Thames had two knives and blood on his arm. (Id. at p.
7.) Thames asked L.C. for something to wipe the blood off; Thames and defendant
eventually found something in the car. (Ibid.)
A short time later, the group saw another man (Dobbs) walking down the street.
(People v. Thames, supra, C018384, at p. 7.) Once again, Thames and defendant
instructed L.C. to stop the car. (Ibid.) As before, they jumped out and ran behind the car.
(Ibid.) When they returned, they were breathing hard. (Ibid.) Defendant exulted that
Thames “ ‘got him again in one punch.’ ” (Ibid.) When L.C. asked what happened,
Thames responded, “ ‘he’s dead, [L.C].’ ” (Ibid.) L.C. listened as Thames described the
sight and sound of blood pouring from Dobbs’s jugular vein. (Id. at p. 8.) Thames and
defendant laughed and asked L.C. if she wanted “ ‘to see one.’ ” (Ibid.)
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Later, L.C. saw Thames washing two steak knives. (People v. Thames, supra,
C018384, at p. 8.) L.C. surmised that the knives had been used to commit the murder and
attempted murder. (Ibid.) Defendant disposed of the knives. (Ibid.) Later still, Thames
told L.C.’s boyfriend that he “ ‘stuck somebody in the jugular vein’ ” with a steak knife.
(Ibid.) Thames also admitted that he stabbed another man in the face. (Ibid.) Defendant
told L.C.’s boyfriend that “there would be a 187 in the news.” (Ibid.)
B. The Jury Instructions and Verdict
The jury was instructed on principles of aiding and abetting intended crimes as
well as the natural and probable consequences doctrine. Under that doctrine, “ ‘ “[a]
person who knowingly aids and abets criminal conduct is guilty of not only the intended
crime [target offense] but also of any other crime the perpetrator actually commits
[nontarget offense] that is the natural and probable consequence of the intended
crime.” ’ ” (People v. Chiu (2014) 59 Cal. 4th 155, 161.) The prosecutor argued both
theories of liability in closing argument.
As noted, the jury found Thames and defendant guilty of first degree murder and
attempted murder. The jury found true allegations that Thames personally used a knife in
each crime, personally inflicted great bodily injury in the attempted murder, and
committed the attempted murder willfully and with premeditation. The jury found not
true allegations that defendant committed the attempted murder willfully and with
premeditation.
C. The Previous Appeal
Thames and defendant challenged the convictions on several grounds. (People v.
Thames, supra, C018384, at pp. 9-28.) Two such grounds, asserted by defendant only,
are relevant here.
First, defendant challenged the sufficiency of the evidence to support the
conviction for attempted murder as an aider and abettor. (People v. Thames, supra,
C018384, at p. 23.) This court rejected defendant’s challenge, stating: “The jury could
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infer that defendants, angry at their exclusion from [the bar] and frustrated in their
attempt to seek revenge there, went hunting for any individuals unlucky enough to cross
their path. From the speed, violence, and viciousness of the attack on [R.G.], the jury
could conclude [defendant] intended at the very least, to aid Thames in administering a
severe beating upon an unsuspecting, vulnerable victim. Attempted murder is a
reasonably foreseeable consequence of such an attack.” (Id. at p. 25.)
“However,” the court continued, “the evidence supports the further inference that
[defendant] was aware of, and shared, Thames’s deadlier intent. Not only were the
defendants apparently willing to take on superior numbers, but [defendant] took the time
to prepare for combat by putting on the latex gloves before the attack on [R.G]. The jury
could infer defendants were willing to attack a group because they were armed. They
could further infer the defendants prepared for the attack in such a manner as to minimize
the evidentiary trail. Even if [defendant’s] part was limited to hitting the victim with his
fists, his actions were calculated to quickly debilitate the victim increasing the likelihood
that Thames’s knife attack would result in death. Ample evidence supports the jury’s
verdict.” (People v. Thames, supra, C018384, at pp. 25-26.)
Second, relying on People v. Woods (1992) 8 Cal. App. 4th 1570 (Woods),
defendant argued the trial court had a sua sponte duty to instruct the jury that, as an aider
and abettor to Dobbs’s murder, he could be found guilty of a lesser degree of the offense
than Thames because it was not reasonably foreseeable that Thames would commit a
deliberate and premeditated murder. (People v. Thames, supra, C018384, at p. 27.) In
Woods, another panel of this court held that, “an aider and abettor may be found guilty of
a lesser crime than that ultimately committed by the perpetrator where the evidence
suggests the ultimate crime was not a reasonably foreseeable consequence of the criminal
act originally aided and abetted, but a lesser crime committed by the perpetrator during
the accomplishment of the ultimate crime was such a consequence.” (Woods, supra, at p.
1577.) The court found the rule in Woods inapplicable on the facts. (People v. Thames,
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supra, C018384, at p. 27.) The court explained: “From the sequence of events leading to
the stabbing of Dobbs, the jury could only conclude that both Thames and [defendant]
shared a deliberate premeditated intent to kill their hapless victim.” (Ibid.)
The court continued: “Even were we, charitably, to grant that at the time of the
attack on [R.G.], [defendant] intended to aid and abet only a violent assault, at the
conclusion of that attack, [defendant] unquestionably knew that Thames had, and used,
the knives. The subsequent statements and conduct of the defendants make it clear they
shared a purpose to attack and, if possible, kill any person they happened upon. Dobbs
was that person. Once defendants selected him as a target, [defendant] fully cooperated
in letting Thames out of the back seat of the car without demur, hunting Dobbs down
through the darkened streets, and facilitating Thames’s deadly attack. Both men were
aware of what they had done and even offered to do another killing so [L.C.] could
witness it. Because the evidence did not suggest a lesser crime than first degree murder,
the trial court was not required to give the instruction suggested by Woods.” (People v.
Thames, supra, C018384, at pp. 27-28.) Accordingly, this court rejected defendant’s
claim of instructional error and affirmed the conviction. (Id. at p. 28.)
D. The Petition
Defendant, representing himself, filed a form petition for resentencing under
section 1170.95 on January 14, 2019. In the petition, defendant declared that he met the
requirements under section 1170.95 for relief under Senate Bill No. 1437, including that
(1) the information allowed the prosecution to proceed under a theory of felony murder or
the natural and probable consequences doctrine; (2) he was convicted of murder based on
a theory of felony murder or the natural and probable consequences doctrine; and (3) he
could not be convicted of first degree murder under changes to section 189 effective
January 1, 2019, because 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. Defendant further declared that he was not a
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major participant in the felony, and did not act with reckless indifference to human life
during the course of the felony. Defendant further declared that the victim was not a
peace officer. Defendant requested that the court appoint him counsel.
The trial court denied the petition. Relying on our opinion in the previous appeal,
the trial court found that, “The facts of the defendant’s involvement in the killing are such
that his application does not come close to making a prima facie showing. The defendant
was present at the time the victim was killed, he assisted in the killing, he enjoyed the
process of the killing and he shared Mr. Thames’[s] intention to kill the victim. The facts
suggest that both the defendant and Mr. Thames were on the prowl to commit a murder.”
The trial court found support for this conclusion in our discussion of defendant’s
challenge to the sufficiency of the evidence, which we have partially excerpted above.
Accordingly, the trial court concluded, “defendant has failed to establish a prima facie
showing that his petition warrants consideration for the relief requested.”
This appeal timely followed.
II. DISCUSSION
Defendant contends the trial court erred by summarily denying the petition
without appointing counsel and allowing the parties to brief the issues. He further
contends he made a prima facie showing of eligibility for resentencing.
A. Senate Bill No. 1437
We begin with an overview of Senate Bill No. 1437, which was enacted “to amend
the felony murder rule and the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f); see People v. Verdugo (2020) 44 Cal. App. 5th 320, 325, review granted Mar.
18, 2020, S260493 (Verdugo); People v. Martinez (2019) 31 Cal. App. 5th 719, 723.)
“Senate Bill No. 1437 achieves these goals by amending section 188 to require that a
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principal act with express or implied malice and by amending section 189 to state that a
person can only be liable for felony murder if (1) the ‘person was the actual killer’; (2)
the person was an aider or abettor in the commission of murder in the first degree; or (3)
the ‘person was a major participant in the underlying felony and acted with reckless
indifference to human life.’ (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2,
3.)” (People v. Cornelius (2020) 44 Cal. App. 5th 54, 57, review granted March 18, 2020,
S260410 (Cornelius); see Verdugo, supra, at p. 326.)
Senate Bill No. 1437 also added section 1170.95, which permits persons convicted
of felony murder or murder under a natural and probable consequences theory to petition
the sentencing court to vacate the conviction and be resentenced on any remaining counts
if he or she could not have been convicted of murder following Senate Bill No. 1437’s
changes to sections 188 and 189. (Stats. 2018, ch. 1015, § 4.) Section 1170.95,
subdivision (b) requires that the petitioner file a declaration showing his or her eligibility
for relief under subdivision (a), the superior court case number and year of the
petitioner’s conviction, and whether he or she requests the appointment of counsel.
Section 1170.95, subdivision (c) describes the next steps in the process as follows:
“The court shall review the petition and determine if the petitioner has made a prima
facie showing that the petitioner falls within the provisions of this section. If the
petitioner has requested counsel, the court shall appoint counsel to represent the
petitioner. The prosecutor shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30 days after the prosecutor
response is served. These deadlines shall be extended for good cause. If the petitioner
makes a prima facie showing that he or she is entitled to relief, the court shall issue an
order to show cause.”
Section 1170.95, subdivisions (b) and (c) create a three-step process for evaluating
a petitioner’s eligibility for relief. (Verdugo, supra, 44 Cal.App.5th at pp. 327-330, rev.
granted; accord People v. Torres (2020) 46 Cal. App. 5th 1168, 1177, review granted June
8
24, 2020, S262011.) First, the trial court determines whether the petition is facially
sufficient under section 1170.95, subdivision (b)(2). (Verdugo, supra, at pp. 327-328.)
To do this, the trial court verifies that the petition contains the information required under
section 1170.95, subdivision (b)(1), and supplies any missing information that can be
“readily ascertained” from reliable, accessible information, including the record of
conviction. (Verdugo, supra, at pp. 328-330.)
If the petition is facially sufficient, then, in the second step, the trial court
determines under section 1170.95, subdivision (c) whether the petitioner has made “a
prima facie showing that the petitioner falls within the provisions of this section.” (§
1170.95, subd. (c).) The Court of Appeal for the Second District, Division 7, has
described this inquiry as “a preliminary review of statutory eligibility for resentencing, a
concept that is a well-established part of the resentencing process under Propositions 36
and 47.” (Verdugo, supra, 44 Cal.App.5th at p. 329, rev. granted.) “The court’s role at
this stage is simply to decide whether the petitioner is ineligible for relief as a matter of
law, making all factual inferences in favor of the petitioner.” (Ibid.) In making this
inquiry, the trial court may again examine readily available portions of the record of
conviction, including “at least,” the “complaint, information or indictment filed against
the petitioner; the verdict form or factual basis documentation for a negotiated plea; and
the abstract of judgment.” (Id. at pp. 329-330.) The trial court may also consider jury
instructions and any appellate opinion in the case. (Id. at p. 333.)
If the trial court determines that the petitioner is not ineligible for relief as a matter
of law, the evaluation of the petition proceeds to the third step, a “second prima facie
review,” in which “the court must direct the prosecutor to file a response to the petition,
permit the petitioner (through appointed counsel if requested) to file a reply and then
determine, with the benefit of the parties’ briefing and analysis, whether the petitioner
has made a prima facie showing he or she is entitled to relief.” (Verdugo, supra, 44
Cal.App.5th at pp. 328, 330, rev. granted.) In this second prima facie review, the trial
9
court must take the petitioner’s factual allegations as true and make a preliminary
assessment whether he or she would be entitled to relief if they were proved. (Id. at p.
328; see also People v. Drayton (2020) 47 Cal. App. 5th 965, 976 [in the second prima
facie review, “the trial [court] considers whether the petitioner has made a prima facie
showing of entitlement to (rather than eligibility for) relief”].)
“If, accepting the facts asserted in the petition as true, the petitioner would be
entitled to relief because he or she has met the requirements of section 1170.95[,
subdivision ](a), then the trial court should issue an order to show cause. [Citation.]
Once the trial court issues the order to show cause under section 1170.95[,
subdivision ](c), it must then conduct a hearing pursuant to the procedures and burden of
proof set out in section 1170.95, subd[ivision] (d) unless the parties waive the hearing or
the petitioner’s entitlement to relief is established as a matter of law by the record.
[Citation.] Notably, following the issuance of an order to show cause, the burden of
proof will shift to the prosecution to prove, beyond a reasonable doubt, that the petitioner
is ineligible for resentencing.” (People v. Drayton, supra, 47 Cal.App.5th at pp. 980-
981.) Both the prosecution and the defense may rely on the record of conviction or may
offer new or additional evidence. (§ 1170.95, subd. (d)(3).)
B. Appointment of Counsel and Briefing
Defendant challenges the trial court’s summary denial of the petition prior to the
appointment of counsel and briefing. Whether a trial court may summarily deny a
section 1170.95 petition prior to the appointment of counsel and briefing has been
addressed by several courts and is currently before our Supreme Court. (Verdugo, supra,
44 Cal.App.5th at p. 323, rev. granted; see also People v. Lewis (2020) 43 Cal. App. 5th
1128, 1137-1140, review granted Mar. 18, 2020, S260598 (Lewis); Cornelius, supra, 44
Cal.App.5th at p. 58, rev. granted.) We find the Verdugo court’s analysis of the issue
particularly persuasive. With regard to the timing of the appointment of counsel and
briefing, the Verdugo court has explained: “The structure and grammar of [section
10
1170.95, subdivision (c)] indicate the Legislature intended to create a chronological
sequence: first, a prima facie showing; thereafter, appointment of counsel for petitioner;
then, briefing by the parties.” (Verdugo, supra, at p. 332.) The court reasoned that it
would not “make sense as a practical matter to appoint counsel earlier in the process
since counsel’s first task is to reply to the prosecutor’s response to the petition. If, as
here, the court concludes the petitioner has failed to make the initial prima facie showing
required by subdivision (c), counsel need not be appointed. Of course, if the petitioner
appeals the superior court’s summary denial of a resentencing petition, appointed counsel
on appeal can argue the court erred in concluding his or her client was ineligible for relief
as a matter of law.” (Id. at pp. 332-333.) Pending further guidance from our Supreme
Court, we agree with Verdugo. Accordingly, we reject defendant’s contention that he had
a statutory right to appointed counsel and briefing in the first prima facie review.
We likewise reject defendant’s contention that he had a constitutional right to
appointed counsel under the Sixth Amendment. As the Court of Appeal for the First
District, Division 2, has explained, in deciding that section 1170.95 petitioners are not
entitled to jury trials, the relief afforded by section 1170.95 is “not subject to Sixth
Amendment analysis. Rather, the Legislature’s changes constituted an act of lenity that
does not implicate defendants’ Sixth Amendment rights.” (People v. Anthony (2019) 32
Cal. App. 5th 1102, 1156; accord People v. Lopez (2019) 38 Cal. App. 5th 1087, 1114-
1115, review granted Nov. 13, 2019, S258175.) Although the Anthony court was not
specifically concerned with the right to counsel, the court’s analysis is closely analogous,
and convinces us that section 1170.95 petitioners, who do not enjoy a Sixth Amendment
right to a jury trial, cannot be said to have a right to counsel under the Sixth Amendment
either. Based on the foregoing, we conclude that defendant’s petition did not implicate
his Sixth Amendment right to counsel, a conclusion that comports with the rule that a
defendant’s “right to appointed counsel extends to the first appeal of right, and no
11
further.” (Pennsylvania v. Finley (1987) 481 U.S. 551, 555.) We therefore reject
defendant’s Sixth Amendment argument.
Finally, defendant argues that due process or equal protection require appointed
counsel in the first prima facie review. Defendant’s argument on this point amounts to
little more than a conclusory assertion, followed by string cites. Although some of
defendant’s cases hold that incarcerated and indigent persons may be constitutionally
entitled to counsel when petitioning for other forms of statutory relief, none support
defendant’s contention that appointed counsel is constitutionally required at this early
stage of the petitioning process, before any evaluation of defendant’s prima facie
eligibility for relief. (See People v. Rouse (2016) 245 Cal. App. 4th 292, 299-301 [holding
that a Proposition 47 petitioner has a Sixth Amendment right to counsel during
resentencing following the trial court’s determination of eligibility, but declining to
decide whether such a petitioner has a right to counsel during the initial eligibility
hearing]; People v. Fryhaat (2019) 35 Cal. App. 5th 969, 981-982 [holding that a section
1473.7 petitioner must make a prima facie showing of entitlement to relief before the
court issues an order to show cause and appoints counsel].) We therefore conclude that
defendant has failed to show that he was entitled to appointed counsel as a matter of due
process or equal protection.
C. The Trial Court Properly Denied the Petition
Defendant next argues the trial court erred in finding he failed to make a prima
facie showing of eligibility for resentencing. He argues the trial court exceeded its
limited role under section 1170.95, subdivision (c), and takes issue with the court’s
reliance on our prior opinion. We share defendant’s view that the trial court’s reasoning
and reliance on our prior opinion were problematic. Even so, we conclude the trial court
reached the right result. (People v. Zapien (1993) 4 Cal. 4th 929, 976 [we review the trial
court’s result, not its reasoning].)
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As defendant correctly observes, the trial court focused on our discussion of the
attempted murder of R.G., and not the murder of Dobbs, which was the offense
underlying the petition. Just as important, our discussion of the defendant’s conviction
for attempted murder involved an entirely different—indeed, opposite—standard of
review. Whereas our substantial evidence review of the sufficiency of the evidence
required us to indulge every inference in favor of the judgment (People v. Torres (2019)
39 Cal. App. 5th 849, 856-857), the trial court’s first prima facie review under section
1170.95, subdivision (c) required the court “simply to decide whether the petitioner is
ineligible for relief as a matter of law, making all factual inferences in favor of the
petitioner.” (Verdugo, supra, 44 Cal.App.5th at p. 329, rev. granted.) That substantial
evidence supports an inference that defendant directly aided and abetted the attempted
murder of R.G. (“was aware of, and shared, Thames’s deadlier intent” (People v. Thames,
supra, C018384, at p. 25)) does not establish as a matter of law that defendant directly
aided and abetted the premeditated murder of Dobbs. Without belaboring the point, our
discussion of the sufficiency of the evidence supporting defendant’s conviction for
attempted murder does not support the conclusion, as a matter of law, that defendant’s
conviction for murder could not have been based on the natural and probable
consequences doctrine. The trial court’s focus on that portion of our prior opinion was
therefore misplaced. But, as the People suggest, the trial court was nevertheless correct
in concluding that defendant was ineligible for relief as a matter of law.
Defendant argued in the prior appeal that the trial court had a sua sponte duty to
instruct the jury that, as an aider and abettor to Dobbs’s murder, he could be found guilty
of a lesser degree of the offense than Thames because it was not reasonably foreseeable
that Thames would commit a deliberate and premeditated murder. (People v. Thames,
supra, C018384, at p. 27.) Defendant’s argument was based on Woods, supra, in which
two defendants—Woods and Windham—assaulted two people and stole some property.
(Woods, supra, 8 Cal.App.4th at p. 1577.) During their getaway, Woods shot and killed a
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person sitting in a nearby car. (Ibid.) Both defendants were charged and tried on a
theory of first degree murder. (Ibid.)
During deliberations, the jury asked whether Windham could be found guilty of
second degree murder, even if Woods, the shooter, was found guilty of first degree
murder. (Woods, supra, 8 Cal.App.4th at p. 1579.) The trial court answered this question
in the negative. (Ibid.) A divided panel of this court reversed, holding that an aider and
abettor may be found guilty under the natural and probable consequences doctrine of a
lesser crime than that committed by the perpetrator, when “the evidence suggests the
ultimate crime was not a reasonably foreseeable consequence of the criminal act
originally aided and abetted, but a lesser crime committed by the perpetrator during the
accomplishment of the ultimate crime was such a consequence.” (Id. at p. 1577; see id. at
pp. 1586-1587.) The majority explained, however, that, “the trial court need not instruct
on a particular necessarily included offense if the evidence is such that the aider and
abettor, if guilty at all, is guilty of something beyond that lesser offense, i.e., if the
evidence establishes that a greater offense was a reasonably foreseeable consequence of
the criminal act originally contemplated, and no evidence suggests otherwise.” (Id. at p.
1593.)
Our prior opinion distinguished Woods on the facts, stating: “From the sequence
of events leading to the stabbing of Dobbs, the jury could only conclude that both
Thames and [defendant] shared a deliberate premeditated intent to kill their hapless
victim.” (People v. Thames, supra, C018384, at p. 27.) Our prior opinion went on to
examine the evidence that defendant aided and abetted the premeditated murder of
Dobbs, stating that the evidence was “clear” that defendant and Thames “shared a
purpose to attack and, if possible, kill any person they happened upon.” (Id. at p. 28.)
Our prior opinion determined that no instructions on lesser offenses to first degree
murder were necessary, because here, in contrast to Woods, the evidence was such that
defendant, “if guilty at all,” was “guilty of something beyond that lesser offense.”
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(Woods, supra, 8 Cal.App.4th at p. 1593; see People v. Thames, supra, C018384, at p.
28.) Implicit in our determination that no supplemental instructions were necessary
under Woods was a determination, on a fully developed record, that the jury relied on a
theory of direct aiding and abetting to find defendant guilty of first degree murder.
(People v. Thames, supra, C018384, at p. 27 [“the jury could only conclude that both
Thames and [defendant] shared a deliberate premeditated intent to kill their hapless
victim”].) That determination, in turn, compels the conclusion that the jury’s verdict was
based on the permissible direct aiding and abetting theory, rather than the impermissible
natural and probable consequences theory.
Our prior opinion thus establishes that defendant was convicted as a direct aider
and abettor in the premeditated murder of Dobbs. It follows that defendant’s status as a
direct aider and abettor has already been adjudicated against him, such that the record of
conviction (specifically, our discussion of defendant’s claim of instructional error)
establishes defendant’s ineligibility for relief under section 1170.95 as a matter of law.
The trial court properly denied defendant’s petition in the first prima facie review, albeit
not for the reasons articulated in the order. (See Lewis, supra, 43 Cal.App.5th at pp.
1138-1139, rev. granted [trial court properly denied section 1170.95 petition in first
prima facie review where record established beyond a reasonable doubt that defendant
acted as a direct aider and abettor, and defendant was precluded from relitigating question
by doctrine of collateral estoppel]; see also 1 Witkin & Epstein, Cal. Criminal Law (4th
ed. 2012) Defenses, § 208, pp. 683-684 [collateral estoppel applies in criminal cases].)
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III. DISPOSITION
The order denying defendant’s petition for resentencing is affirmed.
/S/
RENNER, J.
We concur:
/S/
MAURO, Acting P. J.
/S/
DUARTE, J.
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