People v. Leslie CA2/3 ( 2023 )

Filed 12/21/23 P. v. Leslie CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B327246
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA091536)
v.
DESHAWN DESHA LESLIE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Eleanor Hunter, Judge. Affirmed.
Deshawn Desha Leslie, in pro. per.; Kathy R. Moreno,
under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Deshawn Leslie petitioned for resentencing under Penal
Code section 1172.6,1 which limited accomplice liability for
murder. The trial court denied the petition, and Leslie appealed.
His appellate counsel filed a brief under People v. Delgadillo
(2022) 14 Cal.5th 216. Leslie filed a supplemental brief, arguing
that the trial court improperly denied his petition. We conclude
that the trial court did not err in denying the petition and affirm
the order.
INTRODUCTION
I. The underlying crime, verdict, and sentence2
In 2006, Leslie’s cousin was shot and wounded. Leslie and
his cousin were Tree Top Piru gang members, and they believed
that a rival gang was responsible for the shooting. Dominique
Davis, who also was a Tree Top Piru gang member, armed
himself with a gun and asked Leslie to drive him around to see if
anybody was out. Leslie drove them into rival gang territory and
stopped the car alongside another car in which the victim Ivan
Nieves was sitting. Davis shot Nieves multiple times, killing
him.
1 All further undesignated statutory references are to the
Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
2 We derive the background from the opinion affirming
Leslie’s judgment of conviction on direct appeal. (People v. Leslie
(Mar. 18, 2009, B206632) [nonpub. opn.].) We take judicial notice
of that opinion. (Evid. Code, §§ 451, subd. (a), 452, subds. (a),
(d).)
2
Based on these events, Leslie was charged with one count
of murder. A jury found him guilty of first degree murder (§ 187,
subd. (a)) and found true principal gun use (§ 12022.53, subds.
(b), (c), (d)) and gang (§ 186.22, subd. (b)(1)) allegations.
In 2008, the trial court sentenced Leslie to 50 years to life
plus life.
II. Section 1172.6 petitions for resentencing
In 2019, Leslie filed his first petition for resentencing.
After the trial court appointed counsel for Leslie, received
briefing, and held a hearing, the trial court concluded that Leslie
was not entitled to relief because he was not convicted under the
felony murder rule or the natural and probable consequences
doctrine. The trial court also found that although Leslie was not
the actual killer, he aided and abetted the murder.3 Leslie
appealed the order, which was affirmed on appeal.
In 2022, Leslie filed the second, at-issue petition for
resentencing. The trial court denied this petition on the ground
that Leslie was not entitled to file successive petitions.
This appeal followed. Leslie’s appellate counsel filed an
opening brief that raised no issues and asked this court to
independently review the record under People v. Delgadillo,
supra, 14 Cal.5th 216. We directed appellant’s counsel to send
the record and a copy of the opening brief to Leslie, and we
advised that within 30 days of the date of the notice, Leslie could
submit a supplemental brief or letter stating any grounds for an
3 The record does not contain the reporter’s transcript of the
hearing on the first petition. Therefore, the summary of the trial
court’s reasons for denying it is from Leslie’s opening brief filed in
the prior appeal, which is part of this appellate record.
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appeal, or contentions, or arguments he wished this court to
consider. Leslie submitted a supplemental brief in which he
argues that the trial court erred by denying his petition as a
successive one and that he was convicted based on a theory under
which malice was imputed to him.
DISCUSSION
I. Overview of Senate Bill No. 1437
To the end of ensuring a person’s sentence is commensurate
with the person’s individual criminal culpability, Senate Bill
No. 1437 (2017–2018 Reg. Sess.) limited accomplice liability
under the felony-murder rule, eliminated the natural and
probable consequences doctrine as it relates to murder, and
eliminated convictions for murder based on a theory under which
malice is imputed to a person based solely on that person’s
participation in a crime. (See generally People v. Reyes (2023) 14
Cal.5th 981, 986; People v. Lewis (2021) 11 Cal.5th 952, 957, 959;
People v. Gentile (2020) 10 Cal.5th 830, 842–843.) Senate Bill
No. 1437 added section 189, subdivision (e) (limiting application
of the felony-murder rule) and section 188, subdivision (a)(3)
(stating that “to be convicted of murder, a principal in a crime
shall act with malice aforethought” and malice “shall not be
imputed to a person based solely on his or her participation in a
crime”).
Senate Bill No. 1437 also created a procedure, codified at
section 1172.6, for a person convicted of murder under the former
law to be resentenced if the person could no longer be convicted of
murder under the amended law. (People v. Lewis, supra, 11
Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.)
At the prima facie stage, the trial court takes as true the
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petitioner’s factual allegations and assesses whether the
petitioner would be entitled to relief if those allegations were
proved. (Lewis, at p. 971.) In determining whether the petitioner
has made a prima facie case for relief, the trial court may look at
the record of conviction, including jury instructions, verdicts and
closing argument, to determine readily ascertainable facts such
as the crime of conviction. (People v. Duchine (2021) 60
Cal.App.5th 798, 815; see, e.g., People v. Harden (2022) 81
Cal.App.5th 45, 56.) At the prima facie stage, the trial court does
not engage in fact finding that involves weighing evidence or
exercising discretion. (Lewis, at p. 972.) If a petition establishes
a prima facie case for relief, the trial court must appoint counsel
if requested, issue an order to show cause, and hold an
evidentiary hearing. (§ 1172.6, subds. (b)(3), (c), & (d)(1).)
Otherwise, the trial court may dismiss meritless petitions that do
not establish a prima facie case for relief. (Lewis, at p. 971.)
II. Leslie is ineligible for resentencing
In his supplemental brief, Leslie contends his petition was
improperly denied as a successive petition. Even assuming he is
correct, the trial court nonetheless properly denied the petition
on the merits because his jury was not instructed on felony
murder or the natural and probable consequences doctrine, and
the jury did not convict him based on a theory under which
malice was imputed to him, as we now explain.
Murder is the unlawful killing of a human with malice
aforethought. (§ 187, subd. (a).) Malice is express “when there is
manifested a deliberate intention to unlawfully take away the life
of a fellow creature.” (§ 188, subd. (a)(1).) Malice is implied
“when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and
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malignant heart.” (§ 188, subd. (a)(2).) First degree murder
occurs when the murder is willful, premeditated, and deliberate.
(§ 189, subd. (a).)
A defendant is liable as a direct aider and abettor of
express malice murder if the defendant aided or encouraged the
murder with knowledge of the perpetrator’s unlawful purpose
and with the intent or purpose of committing, encouraging, or
facilitating the murder’s commission. (In re Lopez (2023) 14
Cal.5th 562, 579; People v. McCoy (2001) 25 Cal.4th 1111, 1121
[direct aiding and abetting is based on participants’ combined
actus reus and aider and abettor’s own mens rea].) When an
aider or abettor, acting with a personal mens rea of
premeditation and deliberation, knowingly and intentionally
assists another to kill someone, the aider and abettor is guilty of
first degree premeditated murder. (In re Lopez, at p. 579.)
Some courts have found that the standard instructions on
aiding and abetting and second degree implied malice murder
improperly allow a jury to find a defendant guilty of aiding and
abetting second degree implied malice murder by imputing
another’s malice to the defendant. (See, e.g., People v. Langi
(2022) 73 Cal.App.5th 972; People v. Powell (2021) 63 Cal.App.5th
689.) Those cases are distinguishable. Here, neither the
instructions nor verdicts show that Leslie’s jury imputed malice
to him based solely on his participation in the crime. Rather,
Leslie’s jury found him guilty of first degree murder. In doing so,
it necessarily found he had express, not implied, malice.
That is, CALCRIM No. 520 instructed Leslie’s jury that to
find him guilty of murder, “the People must prove that [¶] 1. The
defendant committed an act that caused the death of another
person [¶] AND [¶] 2. when the defendant acted, he had a state
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of mind called malice aforethought.” The instruction then stated
that there are two kinds of malice: express or implied, either of
which is sufficient to establish the state of mind for murder. The
defendant had express malice “if he unlawfully intended to kill”
and implied malice if he “intentionally committed an act,” the
“natural consequences of the act were dangerous to human life,”
at “the time he acted, he knew his act was dangerous to human
life,” and he “deliberately acted with conscious disregard for
human life.” (Italics added.)
The trial court also instructed the jury with CALCRIM
No. 401, that for Leslie to be guilty as an aider and abettor, he
had to have known that the perpetrator intended to commit the
“crime” and intended to aid and abet the perpetrator in
committing the crime. The instruction further stated, “Someone
aids and abets a crime if he knows of the perpetrator’s unlawful
purpose and he specifically intends to, and does in fact, aid,
facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.”
The only crime charged here was murder. Therefore, under
CALCRIM No. 401, the jury found that Leslie knew his
accomplice intended to commit the crime of murder and intended
to help his accomplice commit murder. Further, the jury found
Leslie guilty of first degree murder, so the jury necessarily
concluded he harbored express malice, which CALCRIM No. 520
stated requires intent to kill. (See People v. Coley (2022) 77
Cal.App.5th 539, 547 [attempted murder conviction necessarily
required intent to kill finding]; cf. People v. Maldonado (2023) 87
Cal.App.5th 1257, 1259, 1262–1263 [instructions permitted
conviction based on imputed malice when defendant was
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convicted of first degree lying-in-wait murder, which does not
require intent to kill].)
Because Leslie was convicted of first degree murder based
on his personal mens rea of express malice, the trial court
properly found him ineligible for resentencing.
DISPOSITION
The order denying Deshawn Leslie’s Penal Code section
1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P.J.
We concur:
EGERTON, J.
ADAMS, J.
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