People v. Stocker CA2/4 ( 2023 )

Filed 10/3/23 P. v. Stocker CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(a). This
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B320930
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA135978
v.
ERIC STOCKER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Affirmed.
Derek K. Kowata, 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, Senior
Assistant Attorney General, Kenneth C. Byrne and Stephanie C.
Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2015, a jury convicted defendant and appellant Eric
Stocker and a co-defendant of first degree murder and two counts
of attempted murder. In 2022, Stocker filed a petition for recall
and resentencing under former Penal Code section 1170.95.1
Without appointing counsel, the trial court summarily denied the
petition. On appeal, Stocker argues the trial court prejudicially
erred by failing to appoint counsel and engaging in improper
factfinding. The Attorney General agrees the trial court erred by
not appointing counsel, but argues the error was harmless
because the record demonstrates Stocker is ineligible for relief as
a matter of law. We agree with the Attorney General and affirm
the order denying relief.
PROCEDURAL BACKGROUND2
Stocker and his co-defendant, Lamont Kellum, were jointly
tried before a single jury. The jury convicted each co-defendant of
first degree murder (§ 187, subd. (a)), two counts of attempted
willful, deliberate, and premeditated attempted murder (§§ 664,
187, subd. (a)), possession of a firearm by a felon (§ 29800, subd.
(a)(1)), and shooting at an inhabited dwelling (§ 246). The jury
1 All undesignated statutory references are to the Penal
Code. Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.)
There were no substantive changes to the statute. All further
references to the statute will be to the new section number.
2 We take judicial notice of our opinion resolving Stocker’s
direct appeal in People v. Kellum et al. (May 9, 2018, B268683)
[nonpub. opn.] (Kellum). (See Evid. Code, § 452, subd. (a).) Some
of the following procedural information is taken from that
opinion.
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found gang and firearm use allegations true on all counts.
(§§ 12022.53, subds. (b), (c), (d), (e)(1), 186.22, subd. (b)(1)(A).)
(Kellum, supra, B268683.)
The trial court sentenced Stocker to 80 years to life on the
murder count, consisting of a base term of 25 years to life,
doubled to 50 years to life under section 667, subdivision (e)(1),
with an additional 25 years to life under section 12022.53,
subdivision (d), plus 5 years under section 667, subdivision (a).
The court sentenced Stocker concurrently on the remaining
counts and allegations. (Kellum, supra, B268683.)
On direct appeal, this court affirmed the convictions and
remanded the matter to the trial court to retroactively exercise
its discretion under section 12022.53, subdivision (h). (Kellum,
supra, B268683.)
In 2022, Stocker filed a section 1172.6 petition seeking
resentencing on his murder and attempted murder convictions.
Without appointing counsel, the trial court summarily denied the
petition. In support of its ruling, the court noted the jury found
Stocker, in committing first degree murder, personally and
intentionally discharged a firearm, causing death to victim
Reggie Heard. (§ 12022.53, subd. (d).) The court also noted the
jury found Stocker personally and intentionally discharged a
firearm in the commission of the attempted murders. (§ 12022.53,
subd. (c).) The court further explained a witness testified he saw
Stocker load a .357 revolver and place it in his pocket, then heard
two guns being fired at the same time, suggesting there were two
shooters, and “the fatal bullet that killed [the victim] was a .357
bullet.” The court lastly explained: “[T]he jurors were instructed
on aiding and abetting.” The court thus concluded Stocker “would
still be convicted of murder and attempted murder as a matter of
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law even with the passage of SB 1437 and SB 775’s changes
under Penal Code [section 1172.6].”
DISCUSSION
I. Governing Law
The Legislature enacted Senate Bill No. 1437 (SB 1437) “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);
accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).) Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775)
expanded Senate Bill No. 1437 to include convictions for
attempted murder under the natural and probable consequences
doctrine. (Stats. 2021, ch. 551.)
SB 1437 also added section 1170.95 to the Penal Code
which, as mentioned above, was later renumbered to section
1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) This
section permits individuals who were convicted of felony murder
or murder under the natural and probable consequences doctrine,
but who could not be convicted of murder following SB 1437’s
changes to sections 188 and 189, to petition the sentencing court
to vacate the conviction and resentence on any remaining counts.
(§ 1172.6, subd. (a).) It likewise permits individuals who were
convicted of attempted murder under the natural and probable
consequences doctrine, but who could not be convicted of
attempted murder under current law, to petition the sentencing
court for relief. (Ibid.)
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A petition for relief under section 1172.6 must include a
declaration by the petitioner that he or she is eligible for relief
based on all the requirements of subdivision (a), the superior
court case number and year of the petitioner’s conviction, and a
request for appointment of counsel, should the petitioner seek
appointment. (§ 1172.6, subd. (b)(1).)
Subdivision (c) of section 1172.6 provides: “Within 60 days
after service of a petition that meets the requirements set forth in
subdivision (b), 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 trial court determines the petitioner has made a
prima facie showing for relief and issues an order to show cause,
the court must hold a hearing “to determine whether to vacate
the murder [and] attempted murder . . . conviction[s] and to
recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not
previously been sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.” (§ 1172.6, subd.
(d)(1).) At the hearing, the parties may rely on the record of
conviction or present “new or additional evidence” to support
their positions, and “the burden of proof shall be on the
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prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).)
II. Analysis
As mentioned above, without appointing counsel or holding
an evidentiary hearing, the trial court denied Stocker relief,
concluding he “would still be convicted of murder and attempted
murder as a matter of law” after the passage of section 1172.6.
The Attorney General concedes the trial court should have
appointed counsel, but argues the error was harmless because
the record demonstrates Stocker is ineligible for relief as a matter
of law. We agree with the Attorney General.
As the trial court noted, on the murder count, the jury
found beyond a reasonable doubt that Stocker personally and
intentionally discharged a firearm, causing death to victim
Reggie Heard. (§ 12022.53, subd. (d).) This finding demonstrates
Stocker is ineligible for relief as a matter of law on the murder
conviction as the actual killer. (See Lewis, supra, 11 Cal.5th at p.
959 [section 1172.6 relief is not available for individuals who
were the actual killer].) Similarly, on the attempted murder
counts, the jury found beyond a reasonable doubt Stocker
personally and intentionally discharged a firearm, indicating it
did not convict him on those counts under an imputed-malice
theory. (Kellum, supra, B268683; § 12022.53, subd. (c).)
Additionally, the record demonstrates that the prosecution,
during closing argument, argued to the jury that Stocker was
guilty of murder and attempted murder as the actual shooter who
harbored the intent to kill. The prosecution did not argue Stocker
was guilty of murder or attempted murder under an imputed-
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malice theory of liability. For these reasons, the record
demonstrates as a matter of law that Stocker is ineligible for
section 1172.6 relief. And because Stocker is ineligible for relief
as a matter of law, the trial court’s error in not appointing
counsel was harmless. (People v. Mancilla (2021) 67 Cal.App.5th
854, 864.)
As Stocker notes, the jury at his trial was instructed as
follows:
A person is guilty of a crime whether he or she
committed it personally or aided and abetted the
perpetrator.
Under some specific circumstances, if the evidence
establishes aiding and abetting of one crime, a person
may also be found guilty of other crimes that occurred
during the commission of the first crime.
(CALCRIM No. 400, italics added.)
The Bench Notes accompanying this instruction state the
above-italicized portion should be given if the prosecution is also
proceeding on the natural and probable consequences doctrine.
(See Judicial Council of Cal., Crim. Jury Instns. (2022) Bench
Notes to CALCRIM No. 400.) The Bench Notes continue by
instructing the court to give either CALCRIM No. 401 –
regarding aiding and abetting liability – or CALCRIM Nos. 402
and 403 – regarding natural and probable consequences. The
trial court here gave CALCRIM No. 401 on aiding and abetting.
The court did not give CALCRIM Nos. 402 and 403 regarding the
natural and probable consequences doctrine.
Although the above-italicized language theoretically
suggested the jury could proceed on imputed-malice principles,
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viewing the instructions and record as a whole, we find
unpersuasive Stocker’s argument that the inclusion of the
italicized language refutes the conclusion that he is ineligible for
relief as a matter of law. (See People v. Estrada (2022) 77
Cal.App.5th 941, 946-948 [affirming denial of section 1172.6
relief despite jury being instructed with above-italicized
language, given prosecutor never argued and jury was never
instructed on natural and probable consequences doctrine].) As
discussed above, because the prosecution’s sole theory at trial
was that Stocker was the actual shooter who harbored the intent
to kill, and because the jury’s true findings on the gun allegations
show it convicted Stocker on that theory, the record indeed
demonstrates that Stocker is ineligible for relief as a matter of
law.
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DISPOSITION
The order denying Stocker’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
COLLINS, J.
ZUKIN, J.
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