People v. Jones CA2/7

Filed 2/15/22 P. v. Jones CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B308831
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. YA024887)
v.
ANTONIO DEJUAN JONES,
Defendant and
Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Hector M. Guzman, Judge. Affirmed.
G. Martin Velez, 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, Idan Ivri and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Antonio Dejuan Jones, convicted in 1996 following a jury
trial of first degree murder with a felony-murder special-
circumstance finding, appeals the superior court’s summary
denial of his petition for resentencing pursuant to Penal Code
section 1170.951 without first appointing counsel and inviting
briefing. Although the court erred by denying the petition
without appointing counsel (People v. Lewis (2021) 11 Cal.5th
952, 963 (Lewis) [“petitioners who file a complying petition
requesting counsel are to receive counsel upon the filing of a
compliant petition”]), the error was harmless because, as the
actual killer of Refugio Garcia, Jones is ineligible for
resentencing under section 1170.95 as a matter of law.
FACTUAL AND PROCEDURAL BACKGROUND
1. Jones’s Conviction for Murder and Other Crimes
Jones was charged in a seven count information filed in
October 1995 with one count of murder (§ 187, subd. (a)),
two counts of attempted willful, deliberate and premeditated
murder (§§ 187, subd. (a), 664), kidnapping to commit robbery
(§ 209, subd. (b)), carjacking (§ 215, subd. (a)) and two counts of
robbery (§ 211). The murder was alleged to have been committed
in the course of a robbery (§ 190.2, subd. (a)(17)); a firearm-use
enhancement was alleged as to each count (§ 12022.5, subd. (a));
and it was alleged as to all counts other than for murder that
Jones had inflicted great bodily injury on his victim (§ 12022.7,
subd. (a)).
1 Statutory references are to this code.
2
The murder charge was based on Jones’s shooting of Garcia
while Jones was stealing an ice cream truck. As described in our
opinion affirming Jones’s convictions on direct appeal, “[O]n
November 15, 1994, appellant drove off in an ice cream truck in
Inglewood. He put a gun to Refugio Garcia’s back and ordered
Garcia out of the truck. Garcia stood there telling Carmen Osorio
[his wife] to get out of the truck. Appellant fatally shot Garcia
and drove off with Osorio in the truck. Appellant kept his gun
pointed at her, stopped in an alley and shot Osorio in the arm.
Then, he put the gun to Osorio’s chest and pulled the trigger.
The gun misfired. Appellant took Osorio’s purse, which
contained about $400, and ran off.” (People v. Jones (May 14,
1997, B100836) [nonpub. opn.].)
The jury convicted Jones on all charges and found true the
felony-murder special-circumstance allegation, as well as all
other enhancement allegations. The trial court sentenced Jones
to life without parole for the special-circumstance murder plus
two consecutive indeterminate life terms for the attempted
murders plus a determinate term of 18 years for various
enhancements.
We affirmed Jones’s convictions, rejecting his contention
the trial court had erred in denying his request for an evaluation
of his suitability for housing at the California Youth Authority
rather than in state prison. (Jones was several weeks shy of his
18th birthday at the time of his commitment offenses.) (People v.
Jones, supra, B100836.)
2. Jones’s Petition for Resentencing
On September 4, 2020 Jones, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel to represent him in the resentencing
3
proceedings. Jones checked boxes on the printed form petition to
establish his eligibility for resentencing relief, including the
boxes stating he had been convicted of first or second degree
murder pursuant to the felony-murder rule or the natural and
probable consequences doctrine and could not now be convicted of
first or second degree murder because of changes made to
sections 188 and 189 by Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437).
On September 9, 2020 the superior court summarily denied
the petition without appointing counsel. The court’s order stated
it had reviewed the court file, including this court’s opinion and
the trial transcripts, which established that Jones “was the
actual killer, not someone convicted only as an aider and abettor.
The jury also made a finding under § 12022.5 that he used a
firearm.” Thus, the court ruled, “[Jones] is not entitled to relief
under section 1170.95 as a matter of law.”
Jones filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e); see Lewis, supra, 11 Cal.5th at
4
p. 957.)2 It also authorized, through new section 1170.95, an
individual convicted of felony murder or murder based on the
natural and probable consequences doctrine to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill 1437’s changes to the definition
of the crime. (See Lewis, at p. 957; Gentile, at p. 843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief (§ 1170.95, subd. (b)(1)(A)), the court must
appoint counsel to represent the petitioner, if requested
(§ 1170.95, subd. (b)(3)),3 and direct the prosecutor to file a
response to the petition, permit the petitioner to file a reply and
determine if the petitioner has made a prima facie showing that
he or she is entitled to relief. (§ 1170.95, subd. (c); see Lewis,
supra, 11 Cal.5th at pp. 962-963.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “the prima facie inquiry
under subdivision (c) is limited. Like the analogous prima facie
2 As amended by Senate Bill No. 775 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 551, § 2), effective January 1, 2022, the
ameliorative provisions of Senate Bill 1437 now also apply to
attempted murder and voluntary manslaughter.
3 Prior to enactment of Senate Bill 775 the requirement to
appoint counsel was set forth in subdivision (c) of section 1170.95.
5
inquiry in habeas corpus proceedings, the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause. . . . However, if 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.” (Id. at
pp. 970-971, internal quotation marks omitted.)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).)4 The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See Gentile, supra, 10 Cal.5th at
pp. 853-854.)
2. The Error in Denying Jones’s Petition Without
Appointing Counsel Was Harmless
In his opening appellate brief, filed two months before the
Supreme Court’s decision in Lewis, supra, 11 Cal.5th 952, Jones
4 As amended by Senate Bill No. 775, section 1170.95,
subdivision (d)(3), now clarifies that, “A finding that there is
substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.”
6
argued only that the superior court had erred in denying his
petition without first appointing counsel and that the error was
structural, requiring reversal of the order denying his petition
without regard to prejudice.5 As discussed, the Lewis Court held,
once a petitioner files a facially sufficient petition requesting
counsel, the superior court must appoint counsel before
performing any prima facie review under section 1170.95,
subdivision (c). (Lewis, at p. 963.) Because Jones checked all the
necessary boxes on his form petition, the superior court erred by
denying his petition without first appointing counsel.
The Lewis Court, however, also held a superior court’s
failure to appoint counsel to represent a petitioner when
assessing whether he or she has made a prima facie showing of
entitlement to relief pursuant to section 1170.95, subdivision (c),
is state law error only, reviewable for prejudice under the
harmless error standard of People v. Watson (1956) 46 Cal.2d
818. (Lewis, supra, 11 Cal.5th at pp. 957, 973-974.) The Court
explained, “There is no unconditional state or federal
constitutional right to counsel to pursue collateral relief from a
judgment of conviction. [Citations.] However, we have held that
‘if a [habeas corpus] petition attacking the validity of a judgment
states a prima facie case leading to issuance of an order to show
cause, the appointment of counsel is demanded by due process
concerns.’ [Citation.] When ‘an indigent petitioner has stated
facts sufficient to satisfy the court that a hearing is required, his
claim can no longer be treated as frivolous and he is entitled to
have counsel appointed to represent him.’ [Citations.] [¶] For
the same reasons, a petitioner is not constitutionally entitled to
5 Jones did not file a reply brief.
7
counsel at the outset of the subdivision (c) stage of the
section 1170.95 petitioning process. [Citation.] At this point, the
petitioner has not yet ‘stated facts sufficient to satisfy the court
that a hearing is required,’ but merely endeavors to do so.”
(Id. at pp. 972-973.)
The record of conviction here, as the superior court ruled,
established that Jones is ineligible for resentencing under
section 1170.95 as a matter of law. The information alleged
Jones alone killed Garcia during the robbery and carjacking of
the ice cream truck; the case was tried on that theory. Jones was
not tried as an accomplice to the murder; and the jury was not
instructed on any theories of vicarious liability. Indeed, the jury
found Jones had personally used a firearm in the commission of
the murder. Jones does not argue otherwise.
To be sure, it appears Jones was prosecuted and convicted
under the felony-murder rule. However, as amended by Senate
Bill 1437, section 189, subdivision (e)(1), provides a perpetrator of
one of the felonies listed in section 189, subdivision (a), which
includes both carjacking and robbery, who was the actual killer of
a victim during the felony, is guilty of first degree murder. Thus,
the theory under which Jones was convicted remains valid, and
he is ineligible for resentencing as a matter of law. (See People v.
Mancilla (2021) 67 Cal.App.5th 854, 864 [petitioner is ineligible
for relief as a matter of law if the record of conviction establishes
he or she was not convicted under a theory of liability affected by
Senate Bill 1437’s amendments to the law of murder].)
Because there is no reasonable probability Jones would
have obtained a more favorable result if counsel had been
appointed and given the opportunity to file a memorandum
supporting the petition, the court’s error in failing to appoint
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counsel was harmless. (See People v. Watson, supra, 46 Cal.2d at
p. 836 [an error violating only California law is harmless unless
“it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error”].)
DISPOSITION
The postjudgment order denying Jones’s petition for
resentencing under section 1170.95 is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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