People v. Wagner CA6 ( 2023 )

Filed 12/8/23 P. v. Wagner CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H050209
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 201285)
v.
CLINTON WAGNER,
Defendant and Appellant.
THE COURT1
Clinton Wagner appeals from an order denying his petition for resentencing under
Penal Code section 1172.6.2 Counsel filed a brief pursuant to People v. Delgadillo
(2022) 14 Cal.5th 216 (Delgadillo), and Wagner subsequently filed supplemental briefs
on his own behalf. For the reasons set forth below, we affirm the order.
I. PROCEDURAL BACKGROUND3
In 1998, a jury convicted Wagner and his codefendant, Ayana Green, of first
degree murder. Green was tried as the direct perpetrator of the murder, and Wagner was
tried as an aider and abettor to Green. The court sentenced Wagner to a term of 25 years
1
Before Greenwood, P. J., Grover, J., and Lie, J.
2
All statutory references are to the Penal Code, unless otherwise stated. Wagner
filed his petition under former section 1170.95. Effective June 30, 2022, section 1170.95
was renumbered section 1172.6 with no substantive change. (Stats. 2022, ch. 58, § 10.)
For clarity, we will cite to current section 1172.6 throughout this opinion.
3
The underlying facts are not relevant to the issues raised on appeal.
to life in prison. We affirmed both defendants’ convictions in People v. Green, et al.
(Mar. 13, 2001, H018964 [nonpub. opn.] (Green).)
In 2019, Wagner filed his first petition pursuant to former section 1170.95 (2019
petition).4 In the petition, Wagner asserted that he was convicted of murder under a
felony murder theory of the offense and was entitled to relief under that provision. The
trial court appointed counsel to represent Wagner and invited both sides to file written
responses. In its response, the prosecution argued that Wagner was ineligible for relief
because he was “convicted as a direct aider and abettor of murder.” The prosecution
attached jury instructions from Wagner’s trial, which showed that the jury was not
instructed on either the felony murder rule or the natural and probable consequences
doctrine. The instructions showed that the jury was instructed on direct aiding and
abetting principles. Wagner’s counsel did not file a reply.
The trial court denied the 2019 petition at the prima facie stage, concluding that
Wagner “was not and could not have been convicted of first degree murder under the
natural and probable consequences or felony murder doctrines.” The jurors in Wagner’s
case “were not instructed on either doctrine; rather, as to [Wagner’s] potential liability for
murder, the jury was only instructed on direct aiding and abetting principles.” Thus, “in
finding [Wagner] guilty of first degree murder, the jury necessarily found him culpable
for murder based on his own actions and mental state as a direct aider and abettor of
murder.”
Wagner appealed from the denial of the 2019 petition. (People v. Wagner (Aug.
17, 2021, H048840) [nonpub. opn.].) The sole issue Wagner raised on appeal was
“whether the trial court is permitted to review the record of conviction at the prima facie
stage” when considering his petition. Relying on People v. Lewis (2021) 11 Cal.5th 952,
we concluded that the trial court may rely on the record of conviction in making this
4
On June 28, 2023, we granted Wagner’s request to take judicial notice of the
appeal from the denial of his 2019 petition, in case No. H048840.
2
initial determination. We further concluded that Wagner’s record of conviction—namely
the jury instructions—“establish[ed] Wagner’s ineligibility [under former section
1170.95] without the need for any factfinding.” We affirmed the trial court’s order.
In 2022, Wagner filed a second petition by completing a Resentencing Petition
form.5 On the form, Wagner checked the requisite boxes alleging, (1) that a complaint or
information was filed against him that allowed the prosecution to charge him with murder
and proceed under the felony murder rule, the natural and probable consequences
doctrine, or other theory under which malice is imputed to him based solely on his
participation in a crime, (2) that he was convicted of murder, and (3) that he could not
presently be convicted of murder under the ameliorative changes set forth in Senate Bill
No. 1437 (2017-2018 Reg. Sess.). The prosecution opposed the petition, reiterating that
Wagner was not convicted of murder under the felony murder rule or the natural and
probable consequences doctrine. The prosecution further argued that because Wagner
had previously raised the same claim in the 2019 petition, his second petition should be
barred.
The trial court denied Wagner’s second petition, on the basis that Wagner’s prior
petition had been “denied on the merits and that denial affirmed on appeal.” In addition,
Wagner “does not claim that any change in circumstances would allow him to file a
renewed section 1170.95 petition.” While the court appointed counsel to represent
Wagner in connection with the second petition, on the day of counsel’s first appearance,
the court indicated that it had already reached its conclusion that the petition was denied.
Wagner timely appealed from that order.6
5
Wagner filed two resentencing petitions, one on May 24, 2022, and the second
on June 1, 2022. As the two petitions are identical, we refer to them collectively as
Wagner’s second petition.
6
On August 22, 2022, the Attorney General filed a letter brief opposing Wagner’s
motion to augment the record and requesting dismissal of the appeal. We granted the
motion to augment and denied the request for dismissal without prejudice to the Attorney
3
On appeal, counsel filed an opening brief pursuant to the procedure set forth in
Delgadillo, supra, 14 Cal.4th at pages 231-232. We notified Wagner that he could file a
supplemental brief on his own behalf, and that failure to do so would result in dismissal
of the appeal as abandoned. (Id. at p. 232.) Wagner filed a timely supplemental brief
dated June 28, 2023 (2023 Supplemental Brief). In that brief, Wagner referenced a prior
letter brief he had submitted to this court. Wagner’s counsel subsequently provided us
with a copy of that letter brief, dated August 26, 2022 (August 2022 Supplemental Brief).
Wagner also filed a separate letter brief, dated November 8, 2022, approximately seven
months before counsel filed the opening brief in this appeal (November 2022
Supplemental Brief). Having considered all three supplemental briefs, we conclude that
Wagner does not raise an arguable issue on appeal.
We accordingly affirm the trial court’s order.
II. DISCUSSION
In his August and November 2022 supplemental briefs, Wagner argues that there
was insufficient evidence to support his first degree murder conviction. He further argues
in the November 2022 supplemental brief that the detectives in the underlying case
violated a witness’s constitutional rights during an interview, and that the witness’s
statements should not have been admitted at trial. Wagner also contends in the 2022
briefs that he is entitled to resentencing under section 1172.6 because he has made a
prima facie showing that he was convicted of murder under a felony murder theory of the
offense.7
General filing a new motion upon receipt of the record or raising the issue in briefing.
The Attorney General has not filed a renewed motion to dismiss.
7
In the August 2022 Supplemental Brief, Wagner requests that existing appellate
counsel recuse himself and that we appoint new counsel to represent him. Because we
conclude that Wagner does not raise an arguable issue on appeal, we respectfully decline
Wagner’s request.
4
In his 2023 supplemental brief, Wagner acknowledges that the trial court did not
instruct the jury on either the felony murder rule or the natural and probable
consequences doctrine. Nevertheless, Wagner contends that the jury could have imputed
malice to him based solely on his participation in a crime. Relying on People v. Langi
(2022) 73 Cal.App.5th 972 (Langi), Wagner argues that under the aiding and abetting
instructions the trial court provided, “the jury was entitled to conclude that, to be guilty as
an aider and abettor of first degree murder, [Wagner] need only have intended to
encourage the perpetrator’s intentional act—in this case an assault of the victim—
whether or not [Wagner] intended to aid or encourage [the victim’s] killing and whether
or not he personally knew of and disregarded the risk of such a killing.” In short, Wagner
argues that the jury could have convicted him of murder as an aider and abettor without
finding that he had personally acted with malice.
Wagner does not raise an arguable issue on appeal. An issue is arguable if it has a
reasonable potential for success, and, if resolved favorably for the appellant, the result
will either be a reversal or a modification of the judgment. (People v. Johnson (1981)
123 Cal.App.3d 106, 109.)
Wagner’s admissibility and insufficiency of evidence claims are not cognizable on
this appeal from an order denying resentencing. We affirmed the judgment in 2001, and
that judgment is long final. (Green, supra, H018964.) “The mere filing of a [section
1172.6] petition does not afford [Wagner] a new opportunity to raise claims of trial error
or attack the sufficiency of the evidence supporting the jury’s findings.” (People v.
Farfan (2021) 71 Cal.App.5th 942, 947.) To the contrary, “ ‘[n]othing in the language of
[section 1172.6] suggests it was intended to provide redress for allegedly erroneous prior
factfinding . . . . The purpose of [section 1172.6] is to give defendants the benefit of
amended sections 188 and 189 with respect to issues not previously determined, not to
provide a do-over on factual disputes that have already been resolved.’ [Citation.]”
(Ibid.)
5
Nor is Wagner’s contention that he was convicted of felony murder arguable on
appeal. Wagner had previously made this argument in his 2019 petition. Relying on jury
instructions from the underlying trial, the trial court denied the petition at the prima facie
stage, stating that the jury was not instructed on felony murder, and that “[i]n finding
[Wagner] guilty of first degree murder, the jury necessarily found him culpable for
murder based on his own actions and mental state as a direct aider and abettor of
murder.” Wagner appealed from the order and we affirmed the denial, concluding that
the “record of conviction–namely the jury instructions–establish[ed] Wagner’s
ineligibility [under former section 1170.95] without the need for any factfinding.” We do
not revisit that conclusion here.
Finally, Wagner’s contention that he was convicted of murder based on a theory of
imputed malice is not arguable. Senate Bill No. 1437 amended section 188 to clarify that
“[m]alice shall not be imputed to a person based solely on his participation in a crime.”
(Stats. 2018, ch. 1015, § 2; § 188, subd. (a)(3).) There was no imputed malice. Both
Wagner and Green were convicted of first degree murder, not second degree, implied
malice murder. The record of conviction shows that the trial court instructed the jury that
to find Green (the direct perpetrator) guilty, it must find that she acted with express
malice–i.e., an intent to kill. The trial court further instructed the jury that to find Wagner
guilty “as an aider and abettor to the crime of murder,” it must find that he had
“knowledge of the perpetrator’s intent to kill unlawfully,” as well as “the intent or
purpose of [aiding and abetting] the commission of murder.”8 (Italics added.) In
8
The jury instruction set forth the four elements of aiding and abetting liability as
follows: “In order to prove defendant Wagner guilty as an aider and [abettor] to the
crime of murder, each of the following must be proven beyond a reasonable doubt: [¶]
1. Defendant Green personally killed another human being. [¶] 2. Defendant Green
committed the killing with malice aforethought; [¶] and [¶] 3. Defendant Wagner had
knowledge of the perpetrator’s intent to kill unlawfully; and [¶] 4. With the intent or
purpose of committing, encouraging, or facilitating the commission of murder, by act or
6
returning a guilty verdict against Wagner for first degree murder, the jury necessarily
found that Wagner personally acted with malice.
Wagner’s reliance on Langi is inapposite. In Langi, the defendant had been
convicted of second degree murder and the court reversed the order denying his
resentencing petition because it found that the aiding-and-abetting instructions created an
ambiguity under which the jury could have found him guilty of aiding and abetting
second degree murder without finding that he personally acted with malice. (See Langi,
supra, 73 Cal.App.5th at p. 982.) No such ambiguity exists here.
Because Wagner raises no arguable issue in his supplemental briefs, we affirm the
trial court’s order.
III. DISPOSITION
The order denying Wagner’s resentencing petition is affirmed.
advice, aided, promoted, advised and encouraged or instigated the commission of
murder.”
7