People v. Lord CA5 ( 2024 )

Filed 1/25/24 P. v. Lord CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F086022
Plaintiff and Respondent,
(Super. Ct. No. CF95545234)
v.
JERRY MAKATO LORD, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Heather
Mardel Jones, Judge.
Randall Conner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, Catherine
Tennant Nieto, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Smith, J.
INTRODUCTION
In 1996, appellant Jerry Makato Lord pled guilty to willful, deliberate, and
1
premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a)) and admitted an
enhancement for the personal infliction of great bodily injury (GBI) (§ 12022.7, subd.
(a)). He was sentenced to a term of life with the possibility of parole.
On April 28, 2022, Lord filed a petition for resentencing under former section
1170.95, now section 1172.6. After appointing counsel to represent Lord and accepting
briefs from the parties, the trial court denied his petition at the prima facie stage.
On appeal, Lord contends that the trial court erred by denying his petition at the
prima facie stage. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The Underlying Crime
The record does not contain a description of the facts underlying Lord’s conviction
for attempted murder. However, Lord’s change of plea form contains the following
factual basis for his plea: “I attempted to murder a human being by a willful, deliberate
and premeditated act and personally caused great bodily injury to that person.”
The Trial Court’s Order Denying Lord’s Petition for Resentencing
On March 22, 2023, following the submission of briefs by the parties and a prima
facie hearing, the trial court issued a written order denying Lord’s petition for
resentencing. The trial court’s order stated the following, in relevant part:
“According to the signed Plea Form, filed on February 22, 1996, Petitioner
Lord pled ‘guilty’ to ‘lst Degree’ attempted murder and admitted personally
causing great bodily injury pursuant to Penal Code § 12022.7. On the plea form
itself, which is signed by Petitioner Lord, under item ‘14a. The facts on which I
base my plea are:’, the following is handwritten in the blank provided: ‘I
1
All undefined statutory citations are to the Penal Code unless otherwise
indicated.
2.
attempted to murder a human being by a willful deliberate and premeditated act
and personally caused great bodily injury to that person.’
[¶ ] … [¶ ]
“Evidenced by his own plea form, Petitioner Lord himself ‘willfully,
deliberately and with premeditation’ attempted to murder victim Ramirez, and in
so acting, Petitioner ‘personally’ caused great bodily injury. Petitioner’s factual
basis admission provides the facts necessary to sustain his conviction. (People v.
Romero (2022) 80 Cal.App.5th 145, 152-153. [Petitioner’s admission to
‘intentional, deliberate, and premeditated’ murder establishes that he acted with
express malice sufficient to sustain his conviction under the amended law and
Petitioner ineligible for sentencing as a matter of law.].)
“Thus, with regard to the element pursuant to Penal Code § 1172.6(a)(3),
the record of conviction demonstrates, beyond a reasonable doubt, that Petitioner
Lord personally acted with the intent to kill and was, and continues to be, guilty of
‘willful, deliberate and premeditated’ attempted murder, including under
California law as amended by the changes to §§ 188 or 189 made effective
January 1, 2019.
“As such, the prima facie case fails as a matter of law and fact. Petitioner
Lord is ineligible for relief as a matter of law, and is not entitled to resentencing.
The Petition is denied with prejudice.”
ANALYSIS
The Record of Conviction Conclusively Establishes Lord is Ineligible for Relief as a
Matter of Law
Lord contends that the trial court erred by denying his petition for resentencing at
the prima facie stage. We disagree.
A. Section 1172.6
“Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended
the felony-murder rule by adding section 189, subdivision (e). [Citation.] It provides
that a participant in the qualifying felony is liable for felony murder only if the person:
(1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a
direct aider and abettor; or (3) was a major participant in the underlying felony and acted
with reckless indifference to human life. [Citation.] The Legislature also amended the
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natural and probable consequences doctrine by adding subdivision (a)(3) to section 188,
which states that ‘[m]alice shall not be imputed to a person based solely on his or her
participation in a crime.’ ” (People v. Harden (2022) 81 Cal.App.5th 45, 50-51; People
v. Strong (2022) 13 Cal.5th 698, 707-708.)
“Senate Bill 1437 also created a special procedural mechanism for those convicted
under the former law to seek retroactive relief under the law as amended,” initially
codified in former section 1170.95. (People v. Strong, supra, 13 Cal.5th at p. 708.) The
initial version of former section 1170.95 permitted “a person with an existing conviction
for felony murder or murder under the natural and probable consequences doctrine to
petition the sentencing court to have the murder conviction vacated and to be resentenced
on any remaining counts if he or she could not have been convicted of murder as a result
of the other legislative changes implemented by Senate Bill No. 1437].” (People v.
Flores (2020) 44 Cal.App.5th 985, 992.)
Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate
Bill 775) made substantive amendments to former section 1170.95 that were consistent
with our Supreme Court’s decision in People v. Lewis (2021) 11 Cal.5th 952, 972
(Lewis), and also “ ‘[c]larifie[d] that persons who were convicted of attempted murder or
manslaughter under a theory of felony murder and the natural [and] probable
consequences doctrine are permitted the same relief as those persons convicted of murder
under the same theories.’ ” (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn.
18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)
On June 30, 2022, the statute was renumbered as section 1172.6 without further
substantive changes. (See People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.)
Section 1172.6, subdivision (a) provides the following:
“(a) 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 when all of the following conditions apply:
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“(1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder, 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, or attempted murder under the natural and probable consequences doctrine.
“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at which
the petitioner could have been convicted of murder or attempted murder.
“(3) The petitioner could not presently be convicted of murder or attempted
murder because of changes to [s]ection 188 or 189 made effective January 1,
2019.” (§ 1172.6, subd. (a).)
The superior court shall appoint counsel if requested by petitioner. (§ 1172.6,
subd. (b)(3).) After service of the petition, the prosecutor shall file and serve a response.
The petitioner may file and serve a reply after the response is served. (Id. at subd. (c).)
“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.” (§ 1172.6, subd.
(c).)
The prima facie determination is a question of law, and the superior court may
deny a petition if the petitioner is ineligible for resentencing as a matter of law. (Lewis,
supra, 11 Cal.5th at p. 966.) At the prima facie stage, the court’s inquiry “ ‘is limited to
readily ascertainable facts from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of discretion (such as
determining whether the petitioner showed reckless indifference to human life in the
commission of the crime).’ ” (People v. Pacheco (2022) 76 Cal.App.5th 118, 125,
quoting People v. Drayton (2020) 47 Cal.App.5th 965, 980.)
5.
The court “ ‘ “takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue an order to show
cause.” ’ [Citations.] ‘[A] court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary hearing.’ [Citations.]
‘However, if the record, including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.)
If the petitioner makes the requisite prima facie showing he or she is entitled to
relief under section 1172.6, the superior court must issue an order to show cause and hold
an evidentiary hearing to determine whether to vacate the murder, attempted murder, or
manslaughter conviction and resentence the petitioner on any remaining counts.
(§ 1172.6, subd. (d)(1).)
We review de novo an order denying a petition under section 1172.6, without
issuing an order to show cause. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251;
People v. Coley (2022) 77 Cal.App.5th 539, 545; People v. Harrison (2021) 73
Cal.App.5th 429, 437.)
B. Analysis
Lord entered a plea of no contest to willful, premeditated and deliberate attempted
murder and he admitted to an enhancement for the personal infliction of GBI in the
commission of that offense. As discussed further below, his conviction could not have
been based upon a theory of imputed malice, such as the natural and probable
consequences doctrine, and he is therefore ineligible for resentencing relief under section
1172.6 as a matter of law.
“Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.” (People v.
Lee (2003) 31 Cal.4th 613, 623.) “[U]nlike murder, attempted murder is not divided into
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degrees. The prosecution, though, can seek a special finding that the attempted murder
was willful, deliberate, and premeditated, for purposes of a sentencing enhancement.”
(People v. Mejia (2012) 211 Cal.App.4th 586, 605.) An aider and abettor may be
convicted of the premeditation penalty provision even though he or she did not personally
deliberate or premeditate the act of murder. (People v. Lee, supra, 31 Cal.4th at pp. 624-
625.) However, he or she must still possess the intent to kill. (Id. at pp. 623-624.)
Here, in entering his guilty plea, Lord expressly admitted that he had acted with
the intent to kill. The factual basis for his plea was based upon the following written
admission: “I attempted to murder a human being by a willful, deliberate and
premeditated act and personally caused great bodily injury to that person.” “ ‘Willful’ is
synonymous with ‘express malice’: in other words, a specific intent to kill. [Citation.]
Premeditation occurs when the [attempted] killing is ‘ “considered beforehand,” ’ and
deliberation occurs when the decision to kill is ‘ “formed or arrived at or determined
upon as a result of careful thought and weighing of considerations for and against the
proposed course of action.” ’ ” (People v. Mejia, supra, 211 Cal.App.4th at p. 604.)
Regardless of whether Lord or his trial counsel wrote these statements, Lord
admitted the truth of these facts and they are binding upon him. (See People v. Romero
(2022) 80 Cal.App.5th 145, 152-153 [A defendant’s admissions in entering a guilty plea
“pursuant to a negotiated plea” are not “ ‘ “ ‘stray comment[s]’ ” ’ ”; to the contrary, they
are binding and part of the record of conviction].)
Lord nonetheless contends that his admissions did not foreclose the possibility that
malice was imputed to him as the aider and abettor to a non-murder target offense.
According to Lord, his admissions could be interpreted to mean that he “ ‘personally
caused great bodily injury’ to Ramirez and that he committed ‘a willful, deliberate, and
premeditated act’ in furtherance of a target crime, which thereby exposed him to liability
for his co-perpetrator’s premeditated attempted murder.” Lord’s argument is premised
upon the possibility that he was convicted as an aider to a non-murder act. However,
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Lord’s admission to the personal infliction of great bodily injury in the commission of
the crime of attempted premeditated murder forecloses such a possibility.
Section 12022.7, subdivision (a) provides: “Any person who personally inflicts
great bodily injury on any person other than an accomplice in the commission of a felony
or attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for three years.” (Italics added.) By enacting section
12022.7, “the Legislature intended to impose an additional penalty for causing great
bodily injury only on those principals who perform the act that directly inflicts the injury,
and that one who merely aids, abets, or directs another to inflict the physical injury is not
subject to the enhanced penalty of section 12022.7.” (People v. Cole (1982) 31 Cal.3d
568, 571, italics added; People v. Rodriguez (1999) 69 Cal.App.4th 341, 348-349
[same].) “Accordingly, ‘one who merely aids, abets, or directs another to inflict the
physical injury is not subject to the enhanced penalty of section 12022.7.’ ” (People v.
Slough (2017) 11 Cal.App.5th 419, 423.) Thus, Lord was convicted as the direct
perpetrator of a premeditated attempted murder, and not as an aider and abettor to a non-
murder crime to whom malice may have been imputed. Lord is therefore ineligible for
section 1172.6 resentencing relief as a matter of law.
DISPOSITION
The trial court’s order denying Lord’s petition for resentencing is affirmed.
8.