People v. Tyler CA2/7 ( 2023 )

Filed 12/12/23 P. v. Tyler CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B326769
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA138610)
v.
DIAMOND DAMARE TYLER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Allen J. Webster, Judge. Affirmed.
Richard L. Fitzer, 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, Supervising
Deputy Attorney General, and Allison H. Chung, Deputy
Attorney General for Plaintiff and Respondent.
INTRODUCTION
Diamond Damare Tyler appeals from the superior court’s
order denying his petition for, among other things, resentencing
under Penal Code section 1172.6 (former section 1170.95)1
without issuing an order to show cause. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Tyler Pleads No Contest to Voluntary Manslaughter
In February 2016, in connection with the shooting death of
Darnell Blow, the People charged Tyler with murder (§ 187,
subd. (a)) and possession of a firearm by a felon (§ 29800,
subd. (a)(1)). With the murder charge the People alleged firearm-
related enhancements under section 12022.53, subdivisions (b),
(c), and (d). The People also alleged Tyler served five prior prison
terms within the meaning of section 667.5, subdivision (b).
At the preliminary hearing, the People presented evidence
Blow died from a single gunshot to the back. Detective Samuel
Marullo, a homicide detective with the Los Angeles Police
Department, testified that during his investigation of the case he
and a partner interviewed Tyler’s cousin, Alicia Baetz, who told
them that on the night of Blow’s death she saw Tyler and Blow
have an altercation, then saw Tyler shoot at Blow as Blow ran
away. Baetz testified she told the detectives that, after she saw
Tyler “shoot the boy [i.e., Blow],” she saw Blow fall, get up, walk
“a little bit more,” and fall again.
1 Statutory references are to the Penal Code.
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Detective Marullo also testified he and his partner
interviewed Lillie Davis, the mother of three children by Tyler.
Davis told the detectives that, two days after Blow was killed,
Tyler contacted her and “said that he didn’t mean to shoot [Blow],
that he was scared for his life, he was concerned, and he didn’t
mean to hit him, he attempted to scare him.” Davis testified at
the preliminary hearing she was still in a relationship with Tyler,
cared for him, and could not remember telling the detectives he
told her he shot Blow. She did remember telling the detectives
Tyler called her after the shooting and said he was scared for his
life.
At the conclusion of the preliminary hearing, counsel for
Tyler argued there was evidence of “some provocation” of Tyler by
Blow and “some sort of altercation that caused one shot to be
fired.” Counsel for Tyler also argued that, although Tyler “shot
at” Blow, Tyler had no “intent to actually kill” Blow and that
Blow was “accidentally . . . struck.” Counsel for Tyler therefore
asked the trial court to “consider reducing this to a
manslaughter.” The court held Tyler to answer on the murder
charge.
In July 2016, pursuant to a negotiated plea agreement,
Tyler pleaded no contest to voluntary manslaughter (§ 192,
subd. (a)) and admitted that, in the commission of the offense, he
personally used a firearm within the meaning of section 12022.5,
subdivision (a). He also admitted he served two prior prison
terms within the meaning of section 667.5, subdivision (b).
Counsel for Tyler stipulated to a factual basis for the plea based
on, among other things, police reports and the preliminary
hearing transcript. Under the plea agreement, the trial court
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sentenced Tyler to an aggregate prison term of 18 years and
dismissed all other charges and allegations.
B. The Superior Court Denies Tyler’s Petition for
Resentencing
In March 2021 Tyler, representing himself, filed a
document in superior court titled “Petition for Resentencing
Pursuant to Special Directives 20-08 et seq. and 20-14 et seq.”
Tyler asked the superior court to “recall his current sentence of
18 years and resentence him in accordance with the newly
implemented sentencing policies set forth in the above-noted
[Special Directive] Provisions.”2 Under the heading “Procedural
Background,” Tyler alleged he was convicted of manslaughter “by
way of no contest plea,” for which, along with admitted
allegations under sections 12022.5 and 667.5, subdivision (b), he
received an aggregate prison term of 18 years. In the rest of the
petition, Tyler argued his sentence was inconsistent with the
policies set forth in special directives issued by the district
2 Special Directive 20-08, issued in December 2020 by
Los Angeles County District Attorney George Gascón, announced
a policy that “sentence enhancements or other sentencing
allegations . . . shall not be filed in any cases and shall be
withdrawn in pending matters.” (Nazir v. Superior Court (2022)
79 Cal.App.5th 478, 486.) Special Directive 20-14, also issued by
Gascón in December 2020, “required the deputy district attorney
in charge of an open and pending case to ‘join in the Defendant’s
motion to strike all alleged sentence enhancement(s)’ or to ‘move
to dismiss all alleged sentence enhancement(s) named in the
information for all counts.’” (Association of Deputy District
Attorneys for Los Angeles County v. Gascón (2022) 79 Cal.App.5th
503, 516, review granted Aug. 31, 2022, S275478.)
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attorney of Los Angeles County and, with one exception, made no
mention of section 1172.6.
That exception was a paragraph headed “Penal Code
1170.95/SB 1437 Resentencing Policy,” which read: “Many people
accepted plea offers to manslaughter, made by this office in order
to avoid a conviction for murder. It is this office’s policy that
where a person took a plea to manslaughter or another charge in
lieu of a trial at which the petitioner could have been convicted of
felony murder, murder under the natural and probable
consequences doctrine, attempted murder under the natural and
probable consequences doctrine, or another theory covered by
Senate Bill 1437, that person is eligible for relief under
section 1170.95. Such a position avoids disparate results
whereby a person who this office has already determined to be
less culpable—as evidenced by allowing a plea for
manslaughter—serves a longer sentence than a similarly
situated person who is now eligible for relief under section
1170.95” (underlining and nonstandard capitalization omitted).3
The first response to Tyler’s petition by the superior court
that appears in the record is a May 2021 minute order, which
reflects that the case was called for a petition for resentencing
under section 1172.6 and that Tyler was represented by counsel.
3 Tyler appears to have taken this paragraph verbatim from
Special Directive 20-14, which is accessible at
https://da.lacounty.gov/sites/default/files/pdf/SPECIAL-
DIRECTIVE-20-14.pdf [as of December 12, 2023], archived at
https://perma.cc/M9QV-6X9Z.
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On that occasion, as well as several subsequent times, the court
continued the hearing on the petition.
In August 2022 the People filed a response to the petition,
arguing Tyler was not eligible for relief under section 1172.6
because he “was not convicted of first or second degree murder” or
“convicted under the felony-murder rule or under the natural and
probable consequences doctrine because he was the only actor,
and the direct consequences of his actions resulted in the death of
the victim.” Relying “on the preliminary hearing transcript as an
appropriate summary of the facts,” the People argued Tyler “was
the one and only shooter of the one and only victim” in the case.
Counsel for Tyler did not file a written reply to the People’s
response.
In November 2022 the superior court held a hearing to
determine whether Tyler had made a prima facie showing he was
entitled to relief under section 1172.6. At the outset of the
hearing, counsel for Tyler stated he was “going to submit.” The
court asked whether counsel for Tyler wanted to indicate his
reasons for doing so. Counsel for Tyler replied: “Well, Your
Honor, I can’t. All I can tell you is that I’m going to submit.
I can’t say on the record. It might harm my client.” Shortly
afterward, counsel for Tyler added: “Your Honor, the People
alleged he was the only person involved. He was the shooter.”4
The People summarized their argument Tyler was not eligible for
relief because, among other reasons, “he was the only actor and
he was the shooter, so it was his direct actions that caused the
4 The two sentences in this quotation appear exactly as they
do in the reporter’s transcript and as the People quote them in
their brief. Tyler does not dispute the transcription’s accuracy or
suggest his counsel’s statements were in any way ambiguous.
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death of the victim.” Asked whether he wished to respond,
counsel for Tyler stated: “You honor, I would agree that I’ve read
the discovery, all of it, and that’s why I’m submitting.” The court
denied the petition “for the reasons . . . articulated by the People.”
Tyler timely appealed.
DISCUSSION
A. Section 1172.6
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder, eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder (People v. Curiel (Nov. 27, 2023,
S272238) ___ Cal.5th ___, ____ [2023 WL 8178140, p. 7]; People v.
Reyes (2023) 14 Cal.5th 981, 984; People v. Gentile (2020)
10 Cal.5th 830, 842-843) and significantly narrowing the felony-
murder exception to the malice requirement for murder (§§ 188,
subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th
698, 707-708; People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis)).
Section 188, subdivision (a)(3), now prohibits imputing malice
based solely on an individual’s participation in a crime and
requires proof of malice to convict a principal of murder, except
under the revised felony-murder rule in section 189,
subdivision (e). The latter provision requires the People to prove
that the defendant was the actual killer (§ 189, subd. (e)(1)); that
the defendant, though not the actual killer, with the intent to kill
assisted in the commission of the murder (§ 189, subd. (e)(2)); or
that the defendant was a major participant in a felony listed in
section 189, subdivision (a), and acted with reckless indifference
to human life, “as described in subdivision (d) of Section 190.2,”
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the felony-murder special-circumstance provision. (§ 189,
subd. (e)(3); see Curiel, at p. ___ [p. 7]; Strong, at p. 708; Gentile,
at pp. 842-843.)
Section 1172.6 authorizes a person convicted of felony
murder or murder, attempted murder, or voluntary
manslaughter based on 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,” to
petition the superior court to vacate the conviction and be
resentenced on any remaining counts if he or she could not now
be convicted of murder or attempted murder because of the
changes the Legislature made to sections 188 and 189. (See
People v. Strong, supra, 13 Cal.5th at p. 708; Lewis, supra,
11 Cal.5th at p. 957; People v. Gentile, supra, 10 Cal.5th at
p. 843.) If a section 1172.6 petition contains all the required
information—which includes, among other things, a declaration
by the petitioner that he is entitled to relief because he could not
presently be convicted of murder or attempted murder as a result
of the changes to sections 188 and 189—the court must appoint
counsel to represent the petitioner if requested. (Lewis, at
pp. 962-963; see § 1172.6, subds. (a)(3), (b)(1)(A), (b)(3).) The
prosecutor must then file a response to the petition, the
petitioner may file a reply, and the court must hold a hearing to
determine whether the petitioner has made a prima facie
showing he or she is entitled to relief. (§ 1172.6, subd. (c); see
People v. Curiel, supra, ___ Cal.5th ___, ___ [pp. 7-8].)
In deciding whether a petitioner has made a prima facie
showing for relief under section 1172.6, “‘“the court takes
petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled to
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relief if his or her factual allegations were proved. If so, the court
must issue an order to show cause.”’” (Lewis, supra, 11 Cal.5th at
p. 971; see People v. Curiel, supra, ___ Cal.5th ___, ___ [p. 14].)
The court may consider the record of conviction, which 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.” (Lewis, at
p. 971; see People v. Williams (2022) 86 Cal.App.5th 1244, 1251.)
“In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of
discretion.’” (Lewis, at p. 972; see People v. Eynon (2021)
68 Cal.App.5th 967, 975.)
“Nevertheless, the court may appropriately deny a petition
at the prima facie stage if the petitioner is ineligible for relief as a
matter of law. ‘“[I]f 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,’”’ thereby deeming the
petitioner ineligible.” (People v. Harden (2022) 81 Cal.App.5th
45, 52; see People v. Curiel, supra, ___ Cal.5th ___, ___ [p. 14];
Lewis, supra, 11 Cal.5th at p. 971.) We review de novo an order
denying a petition under section 1172.6 without issuing an order
to show cause. (Harden, at p. 52; People v. Coley (2022)
77 Cal.App.5th 539, 545.)
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B. The Superior Court Did Not Err in Denying Tyler’s
Petition Without Isssuing an Order To Show Cause,
and Any Error in Relying on the Preliminary Hearing
Transcript Was Harmless
Tyler contends the superior court erred in denying his
petition without issuing an order to show cause because “nothing
in the record . . . contradicts or rebuts, as a matter of law, the
prima facie showing of eligibility for resentencing in [his]
petition.” But there was no prima facie showing of eligibility for
resentencing under section 1172.6 in Tyler’s petition. As stated,
Tyler barely mentioned section 1172.6 in his petition, and even
then he did not even hint he was eligible for relief under the
statute based on the requirements in section 1172.6,
subdivision (a). (See § 1172.6, subd. (b) [“The petition shall
include all the following: [¶] (A) A declaration by the petitioner
that the petitioner is eligible for relief under this section, based
on all of the requirements of subdivision (a). . . .”].) In particular,
he gave no indication he “could not presently be convicted of
murder or attempted murder because of changes to Section 188
or 189 . . . .” (§ 1172.6, subd. (a)(3).)
Nor did counsel for Tyler make any such representation at
the prima facie hearing. In fact, he did the opposite: Based on
his review of the discovery in the case, he conceded Tyler was the
actual shooter in the incident that resulted in Blow’s death. “As
a matter of law, resentencing relief under section 1172.6 is not
available to an ‘actual killer.’” (People v. Garcia (2022)
82 Cal.App.5th 956, 973; accord, People v. Bodely (2023)
95 Cal.App.5th 1193, 1201; see People v. Delgadillo (2022)
14 Cal.5th 216, 233 [petitioner was not eligible for relief under
section 1172.6 because he “was the actual killer and the only
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participant in the killing”].) Therefore, Tyler has not
demonstrated the superior court committed any error in denying
his petition at the prima facie stage.
It is unclear whether and, if so, to what extent the superior
court relied on the preliminary hearing transcript in denying
Tyler’s petition. And Tyler does not specifically argue the court
did so. But he disputes the persuasive value of a case that
figures prominently in the People’s brief, People v. Pickett (2023)
93 Cal.App.5th 982, review granted Oct. 11, 2023, S281643, on
the ground the court in that case relied on People v. Patton (2023)
89 Cal.App.5th 649, review granted June 28, 2023, S279670, in
which the Supreme Court granted review to decide whether a
superior court engages in impermissible judicial factfinding by
relying on the preliminary hearing transcript to deny a
section 1172.6 petition at the prima facie stage.
But to the extent the superior court relied on the
preliminary hearing transcript in denying Tyler’s petition, and
even assuming any such reliance was error, any error was
harmless.5 (See People v. Lewis, supra, 11 Cal.5th at pp. 957-958,
973-974 [errors in denying a petition under section 1172.6 are
evaluated under the harmless error standard of People v. Watson
(1956) 46 Cal.2d 818, 836]; People v. Flores (2022) 76 Cal.App.5th
974, 986 [“To demonstrate prejudice from the denial of a
section 1170.95 petition before the issuance of an order to show
cause, the petitioner must show it is reasonably probable that,
absent error, his or her petition would not have been summarily
denied without an evidentiary hearing.”].) Tyler has not once
alleged or asserted—including in the three briefs filed in this
5 At our request the parties submitted supplemental letter
briefs on this issue.
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appeal (opening, reply, and supplemental)—that he could not
presently be convicted of murder or attempted murder because of
the changes to sections 188 and 189. Counsel for Tyler also
conceded at the prima facie hearing Tyler was the actual shooter,
and Tyler does not argue his counsel was ineffective,
constitutionally or otherwise, for making that concession. Thus,
Tyler has failed to show it is reasonably probable that, had the
superior court not relied on the preliminary hearing transcript
(assuming it did so), the court would have issued an order to
show cause on his petition.
DISPOSITION
The order denying Tyler’s petition under section 1172.6 is
affirmed.
SEGAL, Acting P. J.
We concur:
MARTINEZ, J. EVENSON, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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