People v. Giles CA2/2

Filed 5/7/21 P. v. Giles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B307532
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA036909)
v.
DELONNE TRYICE GILES,
Defendant and Appellant.
THE COURT:
Delonne Tryice Giles appeals the trial court’s denial of his
petition to be resentenced for murder under Penal Code section
1170.95.1 The order is appealable. (§ 1237, subd. (b).) Giles’s
attorney filed a brief raising no issues and asked this court to
independently review the record. Giles submitted a
supplemental brief on his own behalf. On March 10, 2021, this
court summarily dismissed the appeal. Counsel then petitioned
1 Undesignated statutory references are to the Penal Code.
for rehearing. We vacated the dismissal and now address the
appeal on the merits.
In 1997, Giles was convicted by jury of first degree murder
and four counts of attempted murder. (§§ 187, 189.) The jury
found Giles “was a principal” and the attempted murders were
“willful, deliberate and premeditated.” He was sentenced to 26
years to life for the murder and four concurrent life terms for the
attempted murders. His appeal from the judgment was decided
by this court in People v. Giles et al. (Jan. 19, 2000, B118121)
[nonpub. opn.] (Giles).2
Giles is a Crips member. In December 1996, he drove past
the Aguirre brothers, who are members of rival gang Willows.
The Aguirres were chatting on the sidewalk with two friends. A
passenger in Giles’s Hyundai fired multiple times from the car,
until his gun jammed. A bullet struck and killed five-year-old
Oscar Vega, who was near the intended victims. Police found
three nine-millimeter cartridge cases and two expended “full
metal jacket” bullets at the scene. (Giles, supra, B118121.)
Shortly after the shooting, Giles and codefendant Sean
Bytheir arrived at Victoria Dickson’s apartment with two other
Crips. Giles paced nervously as they discussed a little boy shot in
a “ride-by” and the large police presence in the area. Giles said
his green Hyundai was parked on Santa Fe Avenue and gave the
keys to Dickson. That night, Bytheir retrieved the car keys and
discussed a plan to burn the car. (Giles, supra, B118121.)
The Aguirre brothers knew Giles. They identified him as
the driver of the Hyundai, as did a neighbor who was washing his
car nearby. The morning after the shooting, the Hyundai was
2 We granted Giles’s request to take judicial notice of the
record in the direct appeal.
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found burning in Long Beach. The owner of the car had “rented”
it to Giles and another man. (Giles, supra, B118121.)
In videotaped statements, a friend of Giles and Bytheir told
police that the codefendants took two nine-millimeter handguns
and “left to go do [the] dirt,” i.e., shoot at rival gang members.
They drove away in a green car Giles was “renting.” Giles was
the driver and Bytheir was the passenger. They returned 15 to
20 minutes later saying they “dumped on Willows,” i.e., they fired
shots at rival gangsters. Another of the codefendants’ friends
told police that Bytheir was upset because he shot at rivals and
inadvertently killed a child. (Giles, supra, B118121.)
During the investigation, police retrieved a nine-millimeter
handgun from one of the codefendants’ friends, who purchased it
after the shooting. An expert determined that the bullets police
found at the scene were fired from the weapon. During a search,
three live nine-millimeter full metal jacket rounds were found in
the pocket of clothing belonging to Giles. (Giles, supra, B118121.)
Giles told police he was at an unemployment office when
the shooting occurred and claimed he had not driven the Hyundai
recently. Surveillance video showed Giles was not at the
unemployment office. (Giles, supra, B118121.)
Giles petitioned for resentencing in May 2019, declaring
that he was convicted “pursuant to the felony murder rule or the
natural and probable consequences doctrine.” The court
appointed counsel for Giles. The People replied to the petition.
After reviewing the record of conviction and holding a
hearing, the court denied Giles’s petition. It found no prima facie
showing of eligibility for relief. Giles was not convicted under a
felony murder theory or the natural and probable consequences
doctrine. The court said this is a “classic drive-by shooting” in
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which Giles “knew he was driving the shooter into a rival gang’s
territory for the specific purpose to shoot and kill multiple
victims”; he directly aided and abetted the murder and attempted
murders, had the same intent as the shooter and was a major
participant in the crime.
“A person convicted of felony murder or murder under a
natural and probable consequences theory may file a petition . . .
to have the petitioner’s murder conviction vacated and to be
resentenced.” (§ 1170.95, subd. (a).) Giles was not charged with
or convicted of felony murder: No underlying felony (such as
robbery) was underway when the killing occurred. (§ 189, subd.
(a).) The court refused to instruct on the natural and probable
consequences doctrine. (CALJIC No. 3.02.)
Giles could be convicted of murder despite recent changes
to the murder statutes. (§ 1170.95, subd. (a)(3).) A participant is
liable if he “was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree.” (§ 189, subd. (e)(2).) Changes to the
murder statute did not alter the criminal liability of accomplices
because such persons necessarily “know and share the murderous
intent of the actual perpetrator.” (People v. McCoy (2001) 25
Cal.4th 1111, 1117–1118.)
Here, “the jurors were required to find that Giles, as an
aider and abettor, had knowledge of Bytheir’s unlawful purpose
and intended or had the purpose of committing or encouraging or
facilitating the commission of the crime of murder. [¶] The facts
of this case indicate Giles had the same intent, purpose and
motive as Bytheir. The evidence showed that both Giles and
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Bytheir intended to shoot at men they thought to be Willows.”
(Giles, supra, B118121.)
Giles does not qualify for resentencing under section
1170.95 as a matter of law. His declaration in the petition that
he qualifies for relief is belied by the record of conviction. In his
supplemental brief, Giles admits, “[t]he jury was neither
instructed on felony-murder nor on a natural and probable
consequences theory of culpability. And none of the attorneys
argued either of those theories during the presentation of their
respective cases.” He thereby concedes that his petition wrongly
declares otherwise.3
DISPOSITION
The order denying postconviction relief is affirmed.
NOT TO BE PUBLISHED.
____________________________________________________________
LUI, P.J. ASHMANN-GERST, J. CHAVEZ, J.
3 Giles denies that he “had the same intent as the shooter.”
However, jurors had “to find that appellants each harbored
‘express malice aforethought, namely, a specific intent to kill.’ ”
(Giles, supra, B118121.) Giles argued on direct appeal that his
conviction was wrongly based on Bytheir’s mental state. We
wrote, “the record on appeal shows that Giles had the same
intent and mental state as Bytheir.” (Ibid.)
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