People v. Alexander CA3 ( 2024 )

Filed 1/18/24 P. v. Alexander 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent, C097596
v. (Super. Ct. No. 02F08949)
DARRYL KEITH ALEXANDER,
Defendant and Appellant.
Defendant Darryl Keith Alexander appeals the trial court’s denial of his petition
for resentencing under Penal Code former section 1170.95, now 1172.6.1 His appellate
counsel filed a brief raising no arguable issues under People v. Delgadillo (2022)
14 Cal.5th 216 (Delgadillo) and People v. Wende (1979) 25 Cal.3d 436, and asked that
we exercise our discretion to review the record for arguable issues on appeal.
1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022,
the Legislature renumbered former section 1170.95 to section 1172.6 without substantive
change. (Stats. 2022, ch. 58, § 10.) We refer to section 1172.6 throughout this opinion.
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This court notified defendant he had 30 days to file a supplemental brief raising
any argument he wanted us to consider. Defendant filed a supplemental brief arguing the
evidence is insufficient to establish that he had the specific intent to attempt to murder the
victim. Finding no merit in the contention, we will affirm the trial court’s order.
BACKGROUND
In October 2022, four members of the Sureño gang were hanging out in a car
parked behind a strip mall. As the victim and another individual entered a store and
returned to the car, they saw two other individuals standing by the store entrance. After
a few minutes, the two men who had been at the store entrance drove past the Sureño
members, turned around, stopped behind them, asked “How’s that Norte life?” and fired
six shots at the Sureño car. The bullets broke car windows and two bullets were later
found lodged in the passenger side back panel of the vehicle. The victim, who was sitting
in the rear seat on the passenger side of the car, was hit in the head by a bullet, but he
survived.
One of the Sureño members told police that the driver of the other vehicle and the
shooter were members of the Norteño gang. A police officer searched the driver’s
bedroom and found six spent bullet casings inside a plastic baggie. Defendant’s
fingerprints were found on the baggie.
The driver’s older brother testified that the driver and defendant were friends, and
defendant had lived with his family for several years. The day of the shooting, defendant
and the driver were at the family home. Defendant told the brother he shot someone.
Defendant said he was the only shooter.
A jury found defendant guilty of attempted murder (§§ 187/664) and shooting
at an occupied vehicle (§ 246). As to both counts, the jury also found true a personal
gun use enhancement (§ 12022.53, subd. (d)) and a gang enhancement (§ 186.22,
subd. (b)(1)). In July 2004, the trial court sentenced defendant to 40 years to life in
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prison. This court affirmed the judgment. (People v. Alexander (Feb. 28, 2006,
C047362) [nonpub. opn.].)
In March 2022, defendant filed a petition for resentencing. Counsel was
appointed, and the prosecution filed a brief arguing defendant was ineligible for relief
because the jury could not have found defendant guilty of attempted murder under a
theory of natural and probable consequences. The prosecution included a copy of this
court’s prior opinion, the jury instructions given, and the jury verdict. Defendant
responded that the jury instructions, which included CALJIC No. 3.02,2 permitted the
jury to find defendant guilty based on the natural and probable consequences theory.
Defendant also argued the jury’s true finding on the personal use of a firearm
enhancement did not render defendant ineligible for relief as a matter of law, because the
finding did not establish that defendant acted with malice when he used the firearm.
In July 2022, the trial court issued an order to show cause, finding it was possible
the jury found defendant guilty of attempted murder based on the natural and probable
2 The jury was instructed with CALJIC No. 3.02 as follows: “One who aids and abets
another in the commission of a crime or crimes is not only guilty of that crime or crimes,
but is also guilty of any other crime committed by a principal which is a natural and
probable consequence of the crimes originally aided and abetted. [¶] In order to find the
defendant guilty of the crimes of attempted murder under the natural and probable
consequences theory, as charged in Count One, you must be satisfied beyond a
reasonable doubt that: [¶] 1. The crime of shooting at an occupied vehicle was
committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That a co-
principal in that crime committed the crime of attempted murder; and [¶] 4. The crime of
attempted murder was a natural and probable consequence of the commission of the
crime of shooting at an occupied vehicle. [¶] In determining whether a consequence is
‘natural and probable,’ you must apply an objective test, based not on what the defendant
actually intended, but on what a person of reasonable and ordinary prudence would have
expected likely to occur. The issue is to be decided in light of all of the circumstances
surrounding the incident. A ‘natural’ consequence is one which is within the normal
range of outcomes that may be reasonably expected to occur if nothing unusual has
intervened. ‘Probable’ means likely to happen.”
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consequences doctrine. The prosecution filed a brief arguing the evidence showed
defendant was the actual shooter or that he aided and abetted the shooter. The
prosecution recited facts based on the reporter’s transcript from the trial. Defendant
countered that the evidence was unclear as to whether defendant or the driver was the
shooter, and it did not establish that defendant had the requisite intent to kill or that he
directly aided and abetted the shooter.
During the December 2022 hearing, both parties submitted the matter on the
reporter’s transcript of the trial. The trial court found that defendant shot at the victim
and intended to kill him, and that it was true beyond a reasonable doubt that defendant is
guilty of attempted murder under current law. The trial court denied defendant’s petition.
DISCUSSION
In his supplemental brief, defendant argues the evidence is insufficient to establish
that he had the specific intent to attempt to murder the victim.
The California Supreme Court considered whether the Wende process applies
to a trial court’s order denying a petition for postconviction relief under section 1172.6
and concluded such procedures are not required. (Delgadillo, supra, 14 Cal.5th at
pp. 221-222.) The Supreme Court explained that when a defendant files a supplemental
brief in such an appeal, we must evaluate the specific arguments presented in the brief,
but we need not conduct an independent review of the entire record to identify unraised
issues. (Id. at p. 232.)
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on
January 1, 2019, “amend[ed] 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).)
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Generally, a person convicted of attempted murder under the natural and probable
consequences doctrine may file a petition to have the conviction vacated and to be
resentenced on any remaining counts. (§ 1172.6, subd. (a).) Although the natural and
probable consequences theory is no longer an option under current law to convict an aider
and abettor for murder or attempted murder, he or she can still be convicted as a direct
aider and abettor. (§§ 188, 189.) An individual can also still be convicted of attempted
murder if he or she has the specific intent to kill and commits a direct but ineffectual
act toward its commission. (People v. Mejia (2012) 211 Cal.App.4th 586, 605.)
“Specific intent ‘ “is rarely susceptible of direct proof and usually must be inferred from
the facts and circumstances surrounding the offense.” ’ ” (People v. Thompkins (2020)
50 Cal.App.5th 365, 403, disapproved on other grounds in In re Lopez (2023) 14 Cal.5th
562, 584.)
If a petitioner files a facially valid petition and the trial court issues an order to
show cause, the trial court must hold an evidentiary hearing “to determine whether to
vacate the murder, attempted murder, or manslaughter conviction and to recall the
sentence.” (§ 1172.6, subd. (d)(1).) At the hearing, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or
attempted murder under California law.” (Id., subd. (d)(3).)
We review a trial court’s findings following an evidentiary hearing on a
section 1172.6 petition for substantial evidence. (People v. Clements (2022)
75 Cal.App.5th 276, 298, 301.) Under that standard, we recount the evidence “ ‘ “in
the light most favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid value that would
support a rational trier of fact in finding [the defendant guilty] beyond a reasonable
doubt.” ’ ” (Id. at p. 298.) “ ‘Substantial evidence includes circumstantial evidence and
any reasonable inferences drawn from that evidence.’ ” (People v. Clark (2011)
52 Cal.4th 856, 943.)
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Here, substantial evidence supports the trial court’s conclusion that defendant was
the actual shooter and intended to kill the victim. After encountering the victim at the
store, defendant and his companion stopped behind the victim and defendant fired his gun
six times toward the car where the victim was sitting in the rear seat on the passenger
side. A bullet struck the victim in the head and two more bullets were found lodged in
the passenger side back panel of the vehicle. As the California Supreme Court has
explained, “firing a lethal weapon at another human being at close range, without legal
excuse, generally gives rise to an inference that the shooter acted with express
malice. . . . [T]he very act of firing a weapon ‘ “in a manner that could have inflicted a
mortal wound had the bullet been on target” ’ is sufficient to support an inference of
intent to kill.” (People v. Smith (2005) 37 Cal.4th 733, 742.)
There is also substantial evidence that defendant was the lone shooter. The day
of the shooting, defendant told the driver’s brother he was the only shooter.
We find no merit in defendant’s contention.
DISPOSITION
The trial court’s order denying the resentencing petition is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
MESIWALA, J.
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