People v. Oden CA2/5

Filed 5/18/21 P. v. Oden CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B307303
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA048461)
v.
ORDER MODIFYING
TERRELL ODEN, OPINION
Defendant and Appellant. [NO CHANGE IN
JUDGMENT]
The opinion filed on May 3, 2021, is modified to substitute
“James Otto, Judge” for “Shannon Knight, Judge” on the caption
page.
There is no change in judgment.
___________________________________________________________
BAKER, J. RUBIN, P. J. MOOR, J.
Filed 5/3/21 P. v. Oden CA2/5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B307303
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA048461)
v.
TERRELL ODEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Shannon Knight, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
After a jury trial, defendant and appellant Terrell Oden
(defendant) was convicted of first degree murder and conspiracy
to commit murder and sentenced to 75 years to life in prison.
Thirteen years after we affirmed the convictions, defendant
petitioned for resentencing pursuant to Penal Code section
1170.95.1 The trial court denied the petition and defendant’s
attorney in this appeal filed an opening brief pursuant to People
v. Wende (1979) 25 Cal. 3d 436 (Wende) that raises no issues and
asks us to independently review the record. We invited
defendant to submit a supplemental brief and he has, arguing his
section 1170.95 petition should have been granted. We quickly
summarize the pertinent facts and explain why defendant’s
contention lacks merit.
Defendant was convicted of conspiring to murder Rene
Gamora (Gamora) and a corresponding substantive first degree
murder charge. The evidence at trial showed defendant was a
member of a criminal street gang and the murder was gang
related. Defendant was not Gamora’s actual killer, but he was
convicted of the substantive murder offense on an aiding and
abetting theory (he was the getaway driver for Gamora’s shooter
and there was evidence defendant participated in a gang meeting
before the murder where the gang members discussed the need to
go killing rival gang members). Defendant’s jury was not
instructed on the natural and probable consequences theory of
murder nor on felony murder;2 direct aiding and abetting was the
1
Undesignated statutory references that follow are to the
Penal Code.
2
Conspiracy and proximate cause instructions the jury
received did use the phrase “natural and probable consequence,”
2
only instruction the jury received that would permit defendant’s
conviction on the substantive murder offense. We affirmed the
judgment on direct appeal, albeit with directions to modify the
sentence imposed. (People v. Oden (May 1, 2006, B180024)
[nonpub. opn.].)
In February 2019, defendant filed a petition for
resentencing under section 1170.95. Defendant’s form petition
checked boxes declaring he was convicted of first degree murder
pursuant to the felony murder rule or the natural and probable
consequences doctrine. The trial court appointed counsel for
defendant and denied the section 1170.95 petition after
considering an opposition filed by the People and a reply filed by
counsel for defendant (that, notably, conceded the jury was not
instructed on either the felony murder rule or the natural and
probable consequences doctrine).3 The court found defendant was
not entitled to relief because he was convicted of Gamora’s
murder as a direct aider and abettor.
In this appeal from the trial court’s ruling, defendant’s
supplemental brief (essentially a reprise of his trial court
briefing) appears to argue the trial court erred in finding he
failed to make a prima facie showing of entitlement to relief
under section 1170.95 because the evidence submitted in support
of his petition showed he was convicted of murder under either a
but that is distinct from the natural and probable consequences
doctrine of murder liability.
3
Defense counsel conceded the same at the hearing on
defendant’s section 1170.95 petition: “The People are correct. He
wasn’t prosecuted under felony murder. He wasn’t prosecuted
under [a] natural and probable consequence theory o[f] murder.”
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natural and probable consequences or felony murder theory. The
record of conviction, however, shows otherwise and defendant is
not entitled to relief. (See, e.g., People v. Soto (2020) 51
Cal. App. 5th 1043, 1058-1059, review granted Sept. 23, 2020,
S263939; People v. Edwards (2020) 48 Cal. App. 5th 666, 674,
review granted Jul. 8, 2020, S262481; see also People v. Lewis
(2020) 43 Cal. App. 5th 1128, 1135, review granted Mar. 18, 2020,
S260598.)
Having considered defendant’s supplemental brief and
conducted our own examination of the record, we are satisfied
defendant’s appellate attorney has complied with his
responsibilities and no arguable issue exists. (Smith v. Robbins
(2000) 528 U.S. 259, 278-82; People v. Kelly (2006) 40 Cal. 4th 106,
122-24; Wende, supra, 25 Cal.3d at 441.)
DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J. MOOR, J.
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