People v. Jones CA5

Filed 2/18/22 P. v. Jones CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082281
Plaintiff and Respondent,
(Super. Ct. No. BF118151B)
v.
ANTHONY JONES, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
Spolin Law and Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and De Santos, J.
INTRODUCTION
In 2010, a jury convicted petitioner Anthony Jones of the first degree murder of
Deondre M.1 (Pen. Code, 2 § 187, subd. (a)) with the special circumstance petitioner
intentionally killed the victim while petitioner was an active participant in a criminal
street gang, and the murder was carried out to further the activities of the gang (§ 190.2,
subd. (a)(22)). 3 (People v. Perkins, et al. (May 18, 2012, F060071 [nonpub. opn.]
(Perkins).) For this offense, petitioner ultimately was sentenced to a term of 25 years to
life pursuant to section 190.5. (People v. Jones (May 28, 2014, F066161 [nonpub. opn.]
(Jones).)
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95.
The court summarily denied the petition at the prima facie stage on the ground petitioner
was not convicted of felony murder or under a natural and probable consequences theory,
and the jury’s special circumstance finding established petitioner acted with intent to kill.
On appeal, petitioner contends the trial court erred in failing to issue an order to
show cause because the record of conviction does not establish petitioner had the intent to
kill. Petitioner further contends that if the court had issued an order to show cause, the
prosecution would have been unable to prove beyond a reasonable doubt petitioner was
ineligible for resentencing relief under section 1170.95. We conclude the jury’s special
circumstance finding establishes petitioner is ineligible for resentencing as a matter of
law. Accordingly, we affirm the trial court’s order denying resentencing relief pursuant
to section 1170.95.
1Pursuant to California Rules of Court, rule 8.90, we refer to some persons by
their first names. No disrespect is intended.
2 All further statutory references are to the Penal Code unless otherwise specified.
3 Petitioner was convicted of additional offenses and enhancements, as described
below.
2.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are briefly excerpted from our nonpublished opinion in
petitioner’s first direct appeal. 4
“Around 9:15 p.m. on February 13, 2007, gunshots were heard by
residents of a house on Snapdragon Lane in Bakersfield. The residents
described hearing two sets of gunshots, comprised of one or two gunshots
followed by a brief pause and then a number of gunshots in quick
succession. When the residents looked through their kitchen window, they
saw the victim, later identified as Deondre . . . , lying in the front yard.
[Deondre], who sustained multiple gunshot wounds, died from massive
bleeding caused by a gunshot wound to the chest.
“A criminalist examined eight spent cartridge casings found at the
scene and expressed the opinion that all eight were fired from the same
firearm. The firearm was a .40-caliber Glock semiautomatic pistol, either
the Glock Model 22 or the Glock Model 23. Police investigators also
recovered one live round from the scene, but it was of a different caliber
than that of the eight spent cartridge casings. Investigators found a piece of
copper jacketing and a copper jacketed projectile at the scene, and another
projectile was collected from the autopsy. [¶] . . . [¶]
“Torino Jackson attributed the shooting to [petitioner and his
codefendant, Wayne Deshown Perkins]. Jackson testified that sometime
during the afternoon on February 13, 2007, Perkins came to his house.
[Petitioner] joined them later and they all hung out together on Jackson’s
front porch.
“After it got dark, Jackson’s friend, Nyesha H[.], came to the house
and drove Jackson and [petitioner and Perkins] back to her apartment.
Eventually, the three men left the apartment and got into [Nyesha]’s red,
two-door Ford Escort and started driving around. Perkins was the driver,
[petitioner] sat in the front passenger’s seat, and Jackson sat in the backseat.
While they were driving around, Jackson was busy texting on his cell
phone.
“Perkins eventually stopped the car on a residential street and got out
with [petitioner], while Jackson stayed in the car. Jackson saw [petitioner
4 We provide these facts for background purposes because they were cited by
petitioner in his brief. However, we do not rely on these facts in resolving the issues
presented in this appeal. (See § 1170.95, subd. (d)(3).)
3.
and Perkins] walk towards a house close to where they parked. A few
minutes later, [petitioner and Perkins] returned to the car and they started
driving again.
“Soon after they started driving again, Jackson saw [Deondre]
walking down the street. [Deondre] appeared to be talking to someone in
another car. Jackson testified that, as they drove by [Deondre], Perkins
asked him, ‘Watts up?’ [Deondre] replied, ‘All day, every day.’ In a prior
police interview, Jackson said [Deondre] addressed them first, asking
‘Watts up?’ Perkins responded by asking the same question. [Deondre]
then said ‘[a]ll day, every day’ and yelled ‘South’ as [petitioner and
Perkins]’ car passed by him.
“Jackson testified that after this verbal exchange with [Deondre],
Perkins drove into a cul-de-sac and turned around. Perkins then stopped
the car near where [Deondre] was walking and turned off the engine and
lights on the car. [Petitioner and Perkins] both got out of the car, while
Jackson remained in the back seat. [Petitioner] donned a ski mask, pulling
it down so it covered his whole face.
“Jackson saw [petitioner and Perkins] start walking towards
[Deondre]. He was not paying close attention, however, because he was
still on his phone. Suddenly, Jackson heard gunshots and ducked down.
He then peeked out and saw Perkins pointing a gun at [Deondre]. Jackson
heard two sets of gunshots that night.
“When the gunshots ended, [petitioner and Perkins] returned to the
car. As they were driving away, Jackson observed a silver gun on
[petitioner]’s lap. On direct examination, Jackson testified that there was
no conversation during the drive back to [Nyesha]’s apartment, which took
five to seven minutes. However, on cross-examination, Jackson testified
that he remembered [petitioner] saying that his gun had jammed.
“Jackson acknowledged that he knew a person named James B[.],
who had been shot and killed in February 2007. Jackson claimed he could
not recall [petitioner and Perkins] discussing [James] on the drive back to
[Nyesha’s] apartment. He only recalled that they had discussed the subject
earlier that day at his house, talking about how ‘messed up’ it was that
someone had killed [James]. However, during a prior police interview,
Jackson said the shooting ‘probably was a retaliation,’ and reported that,
during the drive back to [Nyesha’s] apartment after the shooting, [petitioner
and Perkins] were talking about what a ‘cool person’ [James] had been and
how they had known him for a long time. [¶] . . . [¶]
4.
“The parties stipulated that the Eastside Crips is a criminal street
gang in Kern County, as the term ‘criminal street gang’ is defined under
section 186.22. Bakersfield Police Officer [K.] Ursery testified as a gang
expert and opined that [petitioner and Perkins] were active members of the
Eastside Crips and that [Torino] was an affiliate or associate of the gang.
Ursery further opined that [Deondre] was affiliated with the Country Boy
Crips, and testified that a longstanding rivalry existed between the East
Side Crips and the Country Boy Crips. Presented with a hypothetical
shooting based on the facts of this case, Ursery expressed the opinion
‘[t]hat it would, in fact, be in benefit of, at the direction of, and in
furtherance of that particular gang.’ ” (Perkins, supra, F060071, fns.
omitted.)
On March 15, 2010, “[a] jury convicted Perkins and [petitioner] of first degree
murder (Pen. Code, § 187, subd. (a); count 1), with a gang special circumstance (§ 190.2,
subd. (a)(22)), a gang enhancement (§ 186.22, subd. (b)(1)), and firearm enhancements
(§ 12022.53, subds. (d), (e)(1)).”5 (Perkins, supra, F060071, fn. omitted.) On April 13,
2010, the trial court sentenced petitioner to a term of life without the possibility of parole.
Additionally, the trial court imposed and stayed, pursuant to section 654, a consecutive
term of 25 years to life for the vicarious firearm enhancement (§ 12022.53, subds. (d),
(e)(1)), and a consecutive term of 15 years to life for the gang enhancement (§ 186.22,
subd. (b)(1)). In the interests of justice, the court struck the enhancement for personal use
of a firearm as unsupported by the evidence.
In petitioner’s direct appeal, this court held it appeared the trial court was unaware
it had discretion, under section 190.5 and due to petitioner’s age, to impose a term of
either life without the possibility of parole or 25 years to life for murder with a gang
special circumstance. This court remanded for the trial court to hold a contested
resentencing hearing to determine whether to impose a sentence of life without the
possibility of parole or 25 years to life. In all other respects, the judgment was affirmed.
(Perkins, supra, F060071.)
5The jury also convicted Perkins of additional offenses and enhancements.
(Perkins, supra, F060071.)
5.
On October 31, 2012, the trial court resentenced petitioner to a 25-years-to-life
term for the first degree murder with the gang special circumstance and also imposed an
additional term of 25 years to life for the vicarious firearm enhancement, for an aggregate
term of 50 years to life. (Jones, supra, F066161.) On appeal from the resentencing, this
court remanded for corrections to the abstract of judgment but otherwise affirmed. (Ibid.)
On July 31, 2019, petitioner, in propria persona, filed a petition for resentencing
pursuant to section 1170.95. In the form petition, petitioner stated a complaint,
information, or indictment was filed against him that allowed him to be prosecuted under
a theory of felony murder or murder under the natural and probable consequences
doctrine; he was convicted of first or second degree murder at trial; and he could not now
be convicted of first or second degree murder because of changes made to sections 188
and 189, effective January 1, 2019. He also requested the court appoint counsel during
the resentencing process, and stated that he was not the actual killer; did not, with the
intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual
killer in the commission of murder in the first degree; and was not a major participant in
the felony or did not act with reckless indifference to human life during the course of the
crime or felony. Lastly, petitioner stated the murder victim was not a peace officer in the
performance of his or her duties.
On August 9, 2019, the trial court appointed counsel for petitioner.
On September 17, 2019, the prosecution filed a motion to dismiss based on the
unconstitutionally of Senate Bill No. 1437 (2017-2018 Reg. Sess.) and petitioner
subsequently filed a reply. On March 2, 2020, the prosecution filed an opposition to
petitioner’s petition for resentencing, arguing the jury’s special circumstance finding
rendered petitioner ineligible for relief. On December 11, 2020, petitioner filed a reply,
arguing the jury did not find he was the actual killer, did not intend to kill the victim, and
was not a major participant who acted with reckless indifference to human life.
6.
On December 22, 2020, the trial court found petitioner ineligible for resentencing
relief stating:
“The Court has reviewed the opinion of the Court of Appeal in this
case. That opinion was filed on May 18, 2012. And it appears clear from
the opinion and findings of the Court of Appeal that this was not a felony
murder. It was not charged as a felony murder nor was it charged under the
Natural and Probable Consequences Doctrine.
“And the Court will also note that the jury found the special
circumstance to be true under Penal Code Section 190.2 (a)(22), that
[petitioner] intentionally killed the victim while the [petitioner] was an
active participant in a criminal street gang.”
The trial court denied the petition and a timely appeal followed.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) “to amend the felony murder rule and the natural and probable consequences
doctrine . . . to ensure that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.” (Stats. 2018,
ch. 1015, § 1, subd. (f).) The bill accomplished this task by adding three separate
provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)
First, to amend the natural and probable consequences doctrine, the bill added section
188, subdivision (a)(3), which requires a principal to act with malice aforethought before
he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-
843.) Second, to amend the felony-murder rule, the bill added section 189, subdivision
(e):
“A participant in the perpetration or attempted perpetration of [qualifying
felonies] in which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted,
7.
counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person
was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section
190.2.”6 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill added section 1170.95 to provide a procedure for those convicted of a
qualifying offense “to seek relief under the two ameliorative provisions above.” (Gentile,
at p. 843.) This procedure is available to persons convicted of “felony murder or murder
under the natural and probable consequences doctrine or other theory under which malice
is imputed to a person based solely on that person’s participation in a crime, attempted
murder under the natural and probable consequences doctrine, or manslaughter.”
(§ 1170.95, subd. (a).)
“Section 1170.95 lays out a process” for a person convicted of one of the
aforementioned offenses “to seek vacatur of his or her conviction and resentencing.”
(Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the
sentencing court averring that:
“(1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder,
murder under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine[;]
“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder[; and]
“(3) The petitioner could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective January 1,
6Additionally, section 189 was amended to allow for felony-murder liability
where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672.)
8.
2019.” (§ 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A); accord,
People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)
Additionally, the petition shall state “[w]hether the petitioner requests the appointment of
counsel.” (§ 1170.95, subd. (b)(1)(C).)
If a petition fails to contain the required information and the information cannot be
“readily ascertained” by the court, the petition may be denied without prejudice to the
filing of another petition. (§ 1170.95, subd. (b)(2).) Otherwise, counsel must be
appointed, if requested. (§ 1170.95, subd. (b)(3).) The prosecutor must file a response
and the petitioner may file a reply. The trial court must then hold a hearing to determine
if the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making
this determination, the court may rely on the record of conviction. (Lewis, at pp. 970-
971.) The record of conviction includes, but is not limited to, jury instructions and
verdict forms. (See generally id. at p. 972.) However, the prima facie inquiry is limited
and, at this stage of the proceedings, the court “should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’ ” (Id. at pp. 971-972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the
petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at p. 853; accord,
§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must “prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd.
(d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet
their respective burdens. The admission of evidence at the hearing is governed by the
Evidence Code. However, the court also “may consider evidence previously admitted at
any prior hearing or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural
9.
history of the case recited in any prior appellate opinion.” (§ 1170.95, subd. (d)(3).)
Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b)
of section 872 is inadmissible at the evidentiary hearing, unless made admissible by
another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)
II. Analysis
Petitioner contends the trial court erred in failing to issue an order to show cause
because the record of conviction did not establish petitioner had the intent to kill.
Petitioner further contends that if the court had issued an order to show cause, the
prosecution would have been unable to prove beyond a reasonable doubt petitioner was
ineligible for resentencing relief under section 1170.95. We disagree with the first
contention and affirm the trial court’s order finding petitioner ineligible for resentencing
relief under section 1170.95. We therefore do not reach petitioner’s second contention.
To be eligible for relief pursuant to section 1170.95, petitioner must not have been
the actual killer, must not have acted with the intent to kill or malice aforethought, and
must not have been a major participant in the underlying felony who acted with reckless
indifference to human life. (§§ 188, subd. (a)(3), 189, subd. (e), 1170.95, subd. (a)(3);
see Gentile, supra, 10 Cal.5th at p. 842.) Here, the jury found true a special circumstance
pursuant to section 190.2, subdivision (a)(22), which imposes a sentence of death or life
without the possibility of parole for a murder involving the defendant’s active
participation in a criminal street gang. (Perkins, supra, F060071.)
To find the special circumstance true, the jury was required to find petitioner
intended to kill the victim. (§ 190.2, subds. (a)(22), (c); see People v. Allison (2020) 55
Cal.App.5th 449, 460.) Section 190.2, subdivision (a)(22) provides:
“The defendant intentionally killed the victim while the defendant was an
active participant in a criminal street gang, as defined in subdivision (f) of
Section 186.22, and the murder was carried out to further the activities of
the criminal street gang.” (Italics added.)
10.
Where the defendant is not the actual killer, this special circumstance applies only if the
defendant, “with the intent to kill, aids, abets, counsels, commands, induces, solicits,
requests, or assists any actor in the commission of murder in the first degree.” (§ 190.2,
subd. (c); accord, People v. Fayed (2020) 9 Cal.5th 147, 201-202.) When read together,
these provisions make clear that only “ ‘one who intentionally aids or encourages a
person in the deliberate killing of another,’ ” in the manner or for the reasons described
by the statute, is subject to the special circumstances punishment. (Fayed, at p. 202;
accord, People v. Allison, supra, 55 Cal.App.5th at p. 460.)
The instruction on the gang special circumstance likewise required the jury to find,
in pertinent part, that “ ‘[t]he defendant, whether or not the actual killer, acted with the
intent to kill.’ ” (Perkins, supra, F060071.) Thus, the relevant jury instruction confirms
the jury was properly instructed on the elements of the special circumstance, including
the requirement that petitioner intended to kill the victim. We therefore disagree with
petitioner’s contention “[t]here is no distinct finding” in the record that he acted with
malice aforethought or intent to kill. To the contrary, the special circumstance finding
establishes the jury made the findings necessary to sustain a murder conviction under
section 189, as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.). Petitioner is
therefore ineligible for resentencing as a matter of law.
Petitioner contends the jury instructions, specifically the instruction detailing
implied malice, establishes he may have been found guilty of first degree murder based
on a natural and probable consequences theory. Again, we disagree. As an initial matter,
the instruction on implied malice is not contained in the record before us. Generally,
however, courts have concluded the “natural and probable consequences” language
contained in the standard instruction on implied malice represents a “distinctly different
concept[]” from the natural and probable consequences doctrine. (People v. Soto (2020)
51 Cal.App.5th 1043, 1056, abrogated on another ground by Lewis, supra, 11 Cal.5th at
p. 967; accord, People v. Chiu (2014) 59 Cal.4th 155, 158, abrogated on another ground
11.
by Sen. Bill No. 1437 (2017-2018 Reg. Sess.).) Regardless, even if the jury had been
instructed on the natural and probable consequences doctrine, the verdict establishes
petitioner was not found guilty under that theory, but rather based on his own intent to
kill the victim. Accordingly, the record establishes petitioner was convicted under a
theory that remains valid under section 189, as amended by Senate Bill No. 1437.
Finally, petitioner contends section 1170.95 is ambiguous with regard to the
requirements for setting forth a prima facie case, and therefore the rule of lenity warrants
a finding that petitioner has established a prima facie case for purposes of determining
eligibility. Specifically, petitioner contends the information allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and probable
consequences doctrine and, although instructions on these theories were not given, he
was convicted of murder solely based on his active participation in a criminal street gang.
We again disagree. Petitioner was convicted based on his own mental state. Although it
is clear petitioner was not the actual killer, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
did not “eliminate direct aiding and abetting liability for murder because a direct aider
and abettor to murder must possess malice aforethought” (Gentile, supra, 10 Cal.5th at
p. 848), and it is clear the jury made a finding that petitioner had the intent to kill.
DISPOSITION
The order denying petitioner’s section 1170.95 petition is affirmed.
12.