People v. Wheeler CA2/5 ( 2021 )

Filed 3/16/21 P. v. Wheeler CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305257
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA287781)
v.
DWAYNE TYRONE WHEELER, JR.
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ray G. Jurado, Judge. Affirmed.
Neil J. Rosenbaum, under appointment by Court of Appeal,
for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
__________________________
Dwayne Tyrone Wheeler, Jr., appeals from an order
denying his petition to vacate his murder conviction and to be
resentenced under Penal Code section 1170.95.1 His appointed
counsel filed a brief pursuant to People v. Serrano (2012)
211 Cal.App.4th 496, raising no issues. Wheeler filed a
supplemental brief arguing the trial court erred in finding he had
not made a prima facie showing of entitlement to relief. We find
no error.
FACTUAL AND PROCEDURAL BACKGROUND
Close to midnight on July 28, 2005, Wheeler and fellow
gang member Joshua Mansion approached Loli Castaneda and
Carlos Avalos in a supermarket parking lot. Wheeler asked
Avalos and Castaneda if they were from a rival gang. Avalos and
Castaneda denied gang membership, and got into their car.
Wheeler said to Mansion, “Shoot that fool.” As Avalos and
Castaneda’s car was pulling out of their parking space, Mansion
fired one shot through the passenger side window, hitting
Castaneda who died soon after.
Wheeler and Mansion were tried together. The jury found
defendants guilty of the willful, deliberate, and premeditated first
degree murder of Castaneda, and the attempted murder of
Avalos. The jury also found true as to Wheeler, among other
findings, that a principal had discharged a firearm while
committing the crime for the benefit of a gang. The trial court
sentenced Wheeler to 65 years to life plus a determinate term of
20 years. We affirmed the judgment in an unpublished opinion.
(People v. Mansion (Nov. 15, 2007, B194414) [nonpub. opn.].)
1 All further undesignated statutory references are to the
Penal Code.
2
In January 2019, Wheeler, acting in propria persona,
petitioned for resentencing pursuant to newly enacted section
1170.95, arguing that he may have been convicted of murder
under the natural and probable consequences doctrine. The trial
court appointed counsel, and both parties filed briefs. The People
argued that the jury was not instructed on the natural and
probable consequences doctrine and the prosecutor’s references to
“natural and probable consequences” in closing argument related
to implied malice.
The court held a hearing on whether Wheeler made a
prima facie showing that he fell within section 1170.95. The
court pointed out that the jury was not instructed with
“CALCRIM 402 or CALCRIM 403, the natural and probable
consequences instructions,” and Wheeler’s counsel agreed.
Instead, Wheeler’s counsel referred to trial counsel’s closing
argument that “the natural and probable consequences” of
Wheeler’s request to “shoot that fool” was murder. Wheeler’s
counsel argued that trial counsel proceeded under “both a direct
aiding and abetting [theory], but also alternatively, a natural and
probable consequences of the result of that statement” theory.
The deputy district attorney, who represented the People both at
trial and at the section 1170.95 hearing, responded, “I didn’t
argue any lesser target offenses at any point. And when I was
speaking about the natural and probable consequences, I was
speaking about the language in implied malice. That’s what I
was referring to. I never told the jury, ‘This lesser crime’ – ‘if you
believe he committed this lesser crime and the natural probable
consequences of that leads to murder, then you can convict of
murder. That was never argued.’ ”
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The court concluded that the jury was not instructed on the
natural and probable consequences theory and did not rely on
this theory to convict Wheeler. The petition was denied, and
Wheeler appealed.
DISCUSSION
When a defendant appeals the denial of postconviction
relief, the Court of Appeal has “no independent duty to review the
record for reasonably arguable issues.” (People v. Cole (2020)
52 Cal.App.5th 1023, 1039, review granted Oct. 14, 2020,
S264278.) “However, if the defendant files a supplemental brief,
the Court of Appeal is required to evaluate any arguments
presented in that brief and to issue a written opinion that
disposes of the trial court’s order on the merits . . . .” (Id. at
p. 1040.) Here, Wheeler filed a supplemental brief arguing he
was entitled to section 1170.95 relief because the jury may have
convicted him under the natural and probable consequences
doctrine, pointing to the prosecutor’s references to “natural and
probable consequences” in the context of implied malice.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) enacted section
1170.95, amending “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(f),
p. 6674.) “As a result, the natural and probable consequences
doctrine can no longer be used to support a murder conviction.
[Citations.] The change did not, however, alter the law regarding
the criminal liability of direct aiders and abettors of murder
because such persons necessarily ‘know and share the murderous
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intent of the actual perpetrator.’ [Citations.] 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.” (People v. Lewis (2020) 43 Cal.App.5th 1128, 1135,
review granted Mar. 18, 2020, S260598 (Lewis).)
Here, the trial court properly relied on the jury instructions
in assessing the prima facie showing under section 1170.95,
subdivision (c). (People v. Edwards (2020) 48 Cal.App.5th 666,
674, review granted July 8, 2020, S262481.) “The jury
instructions given at a petitioner’s trial may provide ‘readily
ascertainable facts from the record’ that refute the petitioner’s
showing, and reliance on them to make the eligibility or
entitlement determinations may not amount to ‘factfinding
involving the weighing of evidence or the exercise of discretion.’
[Citations.]” (People v. Soto (2020) 51 Cal.App.5th 1043, 1055,
review granted Sept. 23, 2020, S263939 (Soto).)
There is no dispute that the jury was not instructed on the
natural and probable consequences doctrine, nor does Wheeler
claim that the jury was instructed on any target crime upon
which the jury could have found murder on a natural and
probable consequences theory. Instead, Wheeler’s argument
rests on the prosecutor’s remarks about the “natural and
probable consequences” of Wheeler’s actions within the context of
implied malice necessary for murder. The prosecutor’s use of
“natural and probable consequences” language in this context did
not transform Wheeler’s conviction into one for murder under the
natural and probable consequences doctrine.
The Soto court described the distinction between implied
malice and natural and probable consequences theories: “The
natural and probable consequence doctrine . . . is a theory of
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liability by which an aider and abettor who intends to aid a less
serious crime can be convicted of a greater crime. This doctrine
comes into play when ‘an accomplice assists or encourages a
confederate to commit one crime, and the confederate commits
another, more serious crime (the nontarget offense).’ [Citation.]
Applying the natural and probable consequences doctrine, ‘a
defendant may be held criminally responsible as an accomplice
not only for the crime he or she intended to aid and abet (the
target crime), but also for any other crime that is the “natural
and probable consequence” of the target crime.’ [Citation.]
Unlike aiding and abetting implied malice murder, which
requires the aider and abettor to (at least) share the mental state
of the actual perpetrator of implied malice murder, ‘ “aider and
abettor culpability under the natural and probable consequences
doctrine is not premised upon the intention of the aider and
abettor to commit the nontarget offense [e.g., murder] because
the nontarget offense was not intended at all.” ’ [Citation.]”
(Soto, supra, 51 Cal.App.5th at p. 1058, review granted.)
Because the jury necessarily found Wheeler culpable for
murder based on his own actions and mental state as a direct
aider and abettor of murder, he “is thus liable for murder under
the new law just as he . . . was liable under the old law” (Lewis,
supra, 43 Cal.App.5th at p. 1135, review granted), and is
ineligible for relief under section 1170.95.
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DISPOSITION
The February 7, 2020 order denying Wheeler’s petition for
resentencing is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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