People v. Evans CA4/2 ( 2024 )

Filed 4/4/24 P. v. Evans CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E079875
v. (Super.Ct.No. SWF1100070)
DANIEL ROBERT EVANS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Alan
Amann and James M. Toohey, Deputy Attorney Generals, for Plaintiff and Respondent.
1
Defendant and appellant Daniel Robert Evans appeals from the trial court’s order
denying his petition for resentencing under Penal Code1 section 1170.95.2 For the
reasons set forth post, we affirm the court’s order.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On February 1, 2012, a jury convicted defendant of attempted first degree murder
(§§ 664, 187 subd. (a); count 1), and active participation in a criminal street gang
(§ 186.22, subd. (a); count 2). The jury also found true the allegation that defendant
personally and intentionally discharged a firearm causing great bodily injury under
sections 12022.53, subdivision (d), and 1192.7, subdivision (c)(8). The jury found not
true the allegation that defendant committed the offenses for the benefit of a street gang
under section 186.22, subdivision (b).
The trial court sentenced defendant to an aggregate term of 32 years to life, as
follows: seven years to life for attempted murder (count 1), plus a consecutive 25 years
to life for the personal and intentional discharge of a firearm. The court also ordered the
midterm of two years for the active participation in a criminal street gang count (count 2),
but stayed the sentence.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Effective June 30, 2022, section 1170.95 was amended and renumbered as
section 1172.6. (Stats. 2022, ch. 58, § 10.) We refer to section 1172.6 in this opinion,
even though 1170.95 was the operative designation at the time of the underlying
proceedings.
2
After defendant appealed, this court reversed the gang participation conviction
(count 2). In all other respects, we affirmed the judgment. (People v. Evans (Jun 21,
2013, E056152) [nonpub. opn.] (Evans-1).)
April 18, 2022, defendant filed a petition for resentencing under section 1172.6.
On September 9, 2022, the trial court denied defendant’s petition.
September 27, 2022, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY3
“On January 9, 2011, Aaron Williams went to a Carl’s Jr. restaurant in San Jacinto
with his uncle Robert Moreno, who has Down syndrome, and his parents. While
Williams’ parents waited in the car, Williams and Moreno went inside the restaurant to
order food. Subsequently, defendant entered the restaurant with his girlfriend, sister, and
young nephew.
“While Moreno was ordering his food, defendant and the two women began
giggling. One of the women began yelling, trying to rush Moreno to order faster.
Williams became upset and told them to wait their turn as Moreno suffered from Down
syndrome. One of the women yelled at defendant ‘to do something.’ Williams and
defendant thereafter got into a confrontation, with defendant saying, ‘It seems like you
have a death wish. Step outside, and I will grant it to you.’ The two women kept telling
defendant to do something. Defendant then left the restaurant. Shortly thereafter
Williams left too to ask his parents whether they wanted to order food.
3 The facts are taken from the unpublished opinion in Evans-1, supra, E056152.
3
“As Williams was exiting the restaurant, one of the women started yelling and
cursing at Williams, and telling defendant to do something. Defendant, who was
standing next to a car parked next to Williams’ car, pointed a gun at Williams and fired
once, shooting Williams[] in the side of his cheek. Williams fell to the ground, and
defendant fled the scene. [¶] . . . [¶] There was no evidence that defendant acted with
others in committing the crime in this case.”
DISCUSSION
A. THE TRIAL COURT PROPERLY FOUND DEFENDANT INELIGIBLE
FOR RELIEF UNDER SECTION 1172.6
On appeal, defendant contends that the trial court “erred by denying [defendant]’s
petition for resentencing without providing a meaningful statement of reasons and
without first reviewing any documents from his record of conviction, in violation of
[defendant]’s statutory and constitutional rights.” For the reasons set forth post, we
disagree with defendant and affirm the court’s order.
1. LEGAL BACKGROUND
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) became
effective January 1, 2019. “Senate Bill 1437 modified California’s felony murder rule
and natural and probable consequences doctrine to ensure murder liability is not imposed
on someone unless they were the actual killer, acted with the intent to kill, or acted as a
major participant in the underlying felony and with reckless indifference to human life.”
(People v. Cervantes (2020) 46 Cal.App.5th 213, 220.)
4
Senate Bill No. 1437 also created a process through which convicted persons can
seek resentencing if they could no longer be convicted under the reformed homicide law.
(§ 1172.6, subd. (a).) Section 1172.6, subdivision (a), provides in part, “A person
convicted of felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter may file a petition with the court that sentenced
the petitioner to have the petitioner’s murder, attempted murder, or manslaughter
conviction vacated and to be resentenced on any remaining counts.” (Italics added.)
Section 1172.6, subdivision (c), provides, “Within 60 days after service of a
petition . . . the prosecutor shall file and serve a response. The petitioner may file and
serve a reply within 30 days after the prosecutor’s response is served. These deadlines
shall be extended for good cause. After the parties have had an opportunity to submit
briefings, the court shall hold a hearing to determine whether the petitioner has made a
prima facie case for relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to show cause. If the court
declines to make an order to show cause, it shall provide a statement fully setting forth its
reasons for doing so.” If the petitioner makes a prima facie showing he is eligible for
relief under section 1172.6, the court shall hold an evidentiary hearing. (§ 1172.6, subds.
(c) & (d)(1).) At this hearing, either party may present new evidence and the prosecution
bears the burden of proving the petitioner could still be convicted beyond a reasonable
doubt. (§ 1172.6, subd. (d)(3).)
5
In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), the California Supreme Court
found that former section 1170.95 entitled a defendant to have appointment of counsel
after filing a proper petition and was entitled to have the opportunity for counsel to file
briefing in response to any opposition filed by the People before the trial court makes its
prima facie determination. (Lewis, at pp. 961-972.) As noted ante, this has been codified
in section 1172.6, subdivision (c).
Thereafter, the California Legislature passed Senate Bill No. 775, effective
January 1, 2022. Senate Bill No. 775 amended former section 1170.95 to expand its
scope to those convicted of “attempted murder under the natural and probable
consequences doctrine.” (§ 1172.6, subd. (a).) The bill also codified the holdings of
Lewis regarding a petitioner’s right to counsel and the standard for determining the
existence of a prima facie case.
If a section 1172.6 petition contains all the required information, including “[a]
declaration by the petitioner that the petitioner is eligible for relief,” the trial court must
appoint counsel if requested (§ 1172.6, subds. (b)(1)(A) & (b)(3)); the prosecutor must
“file and serve a response” to the petition, to which the petitioner may reply (id., subd.
(c); and “[a]fter the parties have had an opportunity to submit briefings, the court shall
hold a hearing to determine whether the petitioner has made a prima facie case for relief.”
(Ibid.)
6
However, a trial court’s failure to comply with these statutory requirements is
harmless if the record of conviction establishes that a defendant is ineligible for section
1172.6 relief as a matter of law. (See Lewis, supra, 11 Cal.5th at p. 973 [trial court’s
statutory omissions at the first step process under section 1172.6 are not state or federal
constitutional violations]; see also People v. Hurtado (2023) 89 Cal.App.5th 887, 893
(Hurtado).) “ ‘Typically, when an “error is purely one of state law, the Watson harmless
error test applies.” ’ ” (Hurtado, at p. 892, quoting Lewis, at p. 973.)
2. THE TRIAL COURT’S ERROR WAS HARMLESS
Defendant contends that the trial court erred in denying his petition for
resentencing at the prima facie stage because it failed to review any record of conviction:
“There is no indication the court independently considered any other documents from the
record of conviction in denying the petition.”
We agree with defendant that the trial court failed to comply with the statutory
requirements under section 1172.6. Notwithstanding the trial court’s failure, we find the
error harmless. Even if the court complied with the statutory requirements, there is no
reasonable possibility that the court would have issued an order to show cause because
defendant was ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 892;
see also Hurtado, supra, 89 Cal.App.5th at p. 893.)
In this case, after defendant filed his pro. per. petition for resentencing, the trial
court appointed counsel and scheduled a date for a status conference. The record on this
appeal does not show that the People filed a response to the petition.
7
At the hearing on the petition on September 9, 2022, the prosecutor and defense
counsel appeared. The prosecutor stated as follows:
“Your Honor, it’s our motion to have the Court deny the petition filed 4/18/22.
The defendant shot the victim in the face after the defendant and his group mocked the
victim’s disabled uncle at a fast food restaurant. The jury conviction was for attempted
murder with .53(d) and gang allegation both found true.4 The opinions and instructions
are in imaging. Sent to counsel on 9/6/22. There’s nothing regarding aiding and
abetting, natural and probable consequences, or felony murder.”
Defense counsel did not object. Instead, counsel stated: “Your Honor, in this
matter, I did talk to [defendant] via CDCR confidential attorney call, and he’s objecting
to the Court denying the petition at this time.”
The trial court then asked defense counsel, “do you take issue with any of the
representations made by [the prosecutor]?” Defense counsel responded, “No, Your
Honor.”
Thereafter, the trial court summarily denied defendant’s petition.
In addition to statements made by the prosecutor and defense counsel at the
hearing on defendant’s petition, the record shows that defendant alone attempted to
murder the victim by directly shooting the victim. No one else was involved in the
4 For clarification, the jury found the criminal street gang enhancement, attached
to the attempted murder count, not true. Instead, the jury found defendant guilty of being
an active participant in a criminal street gang (count 2), which this court reversed in the
underlying appeal. However, defendant’s involvement or non-involvement with a gang
is irrelevant to the analysis under section 1172.6.
8
attempted murder. Moreover, the supplemental clerk’s transcript in this case contains the
jury instructions, and the jury was not instructed with felony murder, aiding and abetting,
or the natural and probable consequences instructions.
“ ‘ “[I]f the record . . . ‘contain[s] facts refuting the allegations made in the
petition,’ then ‘the court is justified in making a credibility determination adverse to the
petitioner.’ ” ’ [Citation.] ‘The record of conviction will necessarily inform the trial
court’s prima facie inquiry under section [1172.6], allowing the court to distinguish
petitions with potential merit from those that are clearly meritless.’ ” (Hurtado, supra, 89
Cal.App.5th at p. 892, quoting Lewis, supra, 11 Cal.5th at p. 971.) Hence, “[a]s the
attempted murderer, [defendant] is ‘ineligible for relief’ as ‘a matter of law,’ and ‘there is
no reasonable probability [defendant] would have obtained a more favorable result if’ ”
the trial court had conducted an evidentiary hearing; “consequently, the trial court’s
errors were ‘harmless.’ ” (Hurtado, supra, 89 Cal.App.5th at p. 893, quoting People v.
Mancilla (2021) 67 Cal.App.5th 854, 864.).)
Here, because defendant acted alone and personally shot the victim, and the jury
was not given the pertinent jury instructions on felony murder, aiding and abetting, or
under a natural and probable consequences theory, defendant is ineligible for relief under
section 1172.6 as a matter of law. (People v. Whitson (2022) 79 Cal.App.5th 22, 34-36.)
Therefore, even if the trial court had reviewed the underlying record, there is no
reasonable probability that an order to show cause would have been issued because the
record of conviction conclusively demonstrates that defendant is ineligible for relief.
9
DISPOSITION
The order denying defendant’s petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
FIELDS
J.
MENETREZ
J.
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