People v. Taylor CA2/4 ( 2024 )

Filed 10/1/24 P. v. Taylor CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B329977
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA044074)
v.
TERRY TAYLOR,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Thomas Rubinson, Judge. Affirmed.
Aurora Elizabeth Bewicke, 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, Assistant Attorney General,
Idan Ivri, Supervising Deputy Attorney General, and Melanie Dorian, Deputy
Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Terry Taylor (Taylor) was convicted of attempted murder
and mayhem in 2005. In 2022, Taylor petitioned for resentencing under
former Penal Code section 1170.95,1 which has since been renumbered as
section 1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) The trial
court denied his petition without an evidentiary hearing. We conclude that
Taylor is ineligible for relief under section 1172.6, and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We draw some of the facts here from the opinion on Taylor’s direct
appeal from his conviction, issued by a prior panel of this court in 2007.
(People v. Young (March 21, 2007, B188300) [nonpub. opn.].)
In September 2003, Taylor and codefendant Jeffery Young (Young)
were riding in a vehicle driven by Kristopher Govea (Govea). The vehicle
pulled up next to a bus stop and a crowd of high school students. Some words
were exchanged, and one of the passengers fired at least three times into the
crowd. At trial, the prosecution argued that Young was the shooter, and
Taylor was guilty as an aider and abettor.
A jury convicted both Taylor and Young of three counts of willful,
deliberate, and premeditated attempted murder (Pen. Code, §§ 664/187, subd.
(a)), as well as three counts of mayhem (§ 203).2 The trial court sentenced
Taylor to three consecutive sentences of 25 years to life on the attempted
murder counts and stayed sentencing on the mayhem counts. This court
1 All future statutory references are to the Penal Code, unless otherwise
stated.
2 The jury also found true a series of nine enhancements.
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affirmed the judgment with minor modifications.3 (People v. Young, supra,
B188300.)
In 2022, Taylor petitioned the trial court for relief under former section
1170.95.4 He argued that error in the instructions could have allowed the
jury to find him guilty without the legally required intent. In 2023, the trial
court held the required hearing under section 1172.6, subdivision (c), and
determined that Taylor had not made a prima facie case for relief. The court
ruled that the jury had been instructed on a direct aiding and abetting theory
and instructed that an attempted murder conviction required a finding of
intent to kill the victim. Therefore, Taylor was not eligible for resentencing.
Taylor timely appealed.
DISCUSSION
I. Governing Law
In 2019, the legislature updated the murder statutes to limit vicarious
liability for that offense. (Stats. 2018, ch. 1015, §§ 1-3; see People v. Lewis
(2021) 11 Cal.5th 952, 959 (Lewis).) The legislature also provided a
procedure for defendants to request resentencing if they had been convicted
under previous versions of the law. (Stats. 2018, ch. 1015, § 4; see Lewis,
supra, 11 Cal.5th at p. 959.) These changes were later expanded to cover
convictions for attempted murder as well. (Stats. 2021, ch. 551.)
3 This court ordered two of the nine enhancements stricken; it did not
reverse the verdict on any count, nor did it alter the sentence imposed.
(People v. Young, supra, B188300.)
4 The petition papers could not be located by the trial court and are not
part of the record here.
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A person convicted of murder is eligible for resentencing if they were
convicted of felony murder, or under the natural and probable consequences
doctrine, or on any “other theory under which malice is imputed to a person
based solely on that person’s participation in a crime.” (§ 1172.6, subd. (a).)
However, a person convicted of attempted murder is only eligible for
resentencing if they were convicted under the natural and probable
consequences doctrine. (Ibid.; People v. Lovejoy (2024) 101 Cal.App.5th 860,
865.)
“[U]nder the natural and probable consequences doctrine, an
accomplice is guilty not only of the offense he or she directly aided or abetted
(i.e., the target offense), but also of any other offense committed by the direct
perpetrator that was the ‘natural and probable consequence’ of the crime the
accomplice aided and abetted.” (People v. Gentile (2020) 10 Cal.5th 830, 843
(Gentile) [superseded by statute on another ground as stated in People v.
Wilson (2023) 14 Cal.5th 839, 869].) A prosecution under that doctrine must
show that the defendant aided and abetted one crime, which foreseeably led
to another. (Gentile, supra, 10 Cal.5th at pp. 843–844.)
In the context of attempted murder, a petition seeking resentencing
under section 1172.6 must demonstrate (1) that the charging document filed
against the defendant permitted the prosecution to proceed under the natural
and probable consequences doctrine, (2) that the petitioner was convicted of
attempted murder, and (3) that the petitioner could not presently be
convicted of attempted murder due to the changes in section 188 or 189.
(§ 1172.6 subd. (a).)
Upon receipt of a facially compliant petition, the trial court must hold a
hearing “to determine whether the petitioner has made a prima facie case for
relief.” (§ 1172.6, subd. (c).) The court may examine the record of conviction
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in determining whether the showing has been made, but must accept the
petitioner’s allegations as true unless the court’s own documents contain facts
refuting those allegations. (Lewis, supra, 11 Cal.5th at p. 971.)
We review the trial court’s inquiry de novo. (People v. Williams (2022)
86 Cal.App.5th 1244, 1251.)
II. Analysis
Nothing in the record suggests, and Taylor does not argue, that the
prosecution proceeded expressly under the natural and probable
consequences doctrine. No jury instruction on that doctrine was given, nor
was it mentioned by the prosecutor during argument. Instead, Taylor
contends that the jury instructions, combined with the prosecutor’s use of
certain language at trial, invited the jury to employ the natural and probable
consequences doctrine in substance, even if not in name.5
Taylor focuses on two instructions. The first, sometimes referred to as
a “kill zone” instruction, told the jury that intent to harm one specific victim
may include the intent to harm those close by: “[a] person who primarily
intends to kill one person may also concurrently intend to kill other persons
within a particular zone of risk. The intent is concurrent when the nature
and scope of the attack, while directed at a primary victim, are such that it is
reasonable to infer the perpetrator intended to kill the primary victim by
killing everyone in that victim’s vicinity.” The second instruction explained
5 Taylor argues that he may have been convicted “under an invalid
theory of imputed malice,” and uses similar terms throughout his briefing.
As discussed above, this is not the correct framing of the issue. While that
argument might be available to a defendant who was convicted of murder,
Taylor was convicted of attempted murder, and therefore resentencing is only
available to him if he was convicted under the natural and probable
consequences doctrine. (§ 1172.6, subd. (a).)
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aiding and abetting: “[a] person aids and abets the commission or attempted
commission of a crime when he, one, with knowledge of the unlawful purpose
of the perpetrator, and, two, with the intent or purpose of committing or
encouraging or facilitating the commission of the crime, and [sic], three, by
act or advice aids, promotes, encourages, or instigates the commission of the
crime.”
Taylor argues that these instructions permitted the jury to find Taylor
guilty if Young intended to kill anyone in range and Taylor intended to aid
Young in the crime of a drive-by shooting. According to Taylor, by repeatedly
referring to the incident as a “drive-by shooting,” the prosecutor tried to lead
the jury to a finding that Taylor intended to commit an assault with a
firearm (§ 245 subd. (a)(2)), and then hold Taylor responsible for the
attempted murder as a natural and probable consequence. Taylor’s
argument is not persuasive.
A similar argument was rejected in People v. Cortes (2022) 75
Cal.App.5th 198. In that case, the defendant had driven his car past a liquor
store and someone had fired out the window, killing a person. (Id. at p. 200.)
There as here, defendant argued that the prosecutor had invited the jury to
find that defendant aided and abetted an assault with a firearm, with murder
as a natural and probable consequence. (Id. at pp. 201–202.) Pointing to the
fact that no other crime had been specifically charged or argued, the court
found “no merit” in the “speculation” that the jury would rely on an
“unidentified and uncharged crime, contrary to the trial court’s instructions.”
(Id. at pp. 205–206.)
The same logic applies here. The phrase “drive-by shooting” is a factual
description, not a legal term of art. A jury cannot be expected to link such a
description to a different crime which was not presented to them. The trial
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court did not instruct the jurors on assault with a firearm, and there is no
indication in the record that the jurors were asked to make any findings
about such an offense. In fact, during her rebuttal argument at closing, the
prosecutor told the jury not to consider assault with a deadly weapon. There
was no attempt to divert the jury into finding Taylor guilty of a crime with
which he was never charged.
Taylor complains that the trial court failed to properly describe the
specific intent needed to find Young guilty,6 and then made it easier for the
jury to find Taylor shared that intent as a direct aider and abettor. But even
if the court erred in its instructions on the intent element of the crime, claims
of general instructional error do not entitle Taylor to resentencing under
section 1172.6.7 (People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 936.)
Finally, Taylor argues that the jury must have been confused because
they convicted both Taylor and Young of firing “the exact same bullets.” He
bases this argument on the jury’s special circumstances findings that both
Taylor and Young “personally” discharged a firearm during the commission of
the crime. However, section 1172.6 does not provide an avenue for general
6 In a subsequent case, People v. Canizales (2019) 7 Cal.5th 591, the
California Supreme Court limited the “kill zone” theory to circumstances
where the only reasonable inference is that the defendant intended to kill
everyone within a certain area. The Court explained that anything less
“essentially equated attempted murder with implied malice murder.” (Id. at
p. 614.) Taylor argues that he has been convicted under a “no longer valid”
theory of attempted murder. However, as already explained, Taylor is only
entitled to relief under section 1172.6 if he was convicted under the natural
and probable consequences doctrine. Canizales did not involve or discuss
that doctrine.
7 Because section 1172.6 is not the proper vehicle for review of
instructional error, we need not and do not decide whether any such error
occurred.
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inquiry into trial proceedings, including the proceedings of the jury. (People
v. Farfan (2021) 71 Cal.App.5th 942, 947.) The issue is not whether the jury
was confused; the issue is whether Taylor was prosecuted and convicted
under a natural and probable consequences theory. (§ 1172.6, subd. (a); see
also People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [disapproved on an
unrelated point in Lewis, supra, 11 Cal.5th at p. 962].) He was not.
Because we conclude that Taylor was not convicted under the natural
and probable consequences doctrine and therefore has not made a prima facie
case for relief under section 1172.6, we need not consider his arguments
about whether there are any bars to relief. Because we find no forfeiture
based on the actions of Taylor’s appointed counsel at the hearing below, we
need not discuss his alternative argument based on ineffective assistance of
counsel.
DISPOSITION
The order of the trial court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.
WE CONCUR:
CURREY, P. J. MORI, J.
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