People v. Cheshire CA2/4

Filed 2/28/22 P. v. Cheshire 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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, B312182
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA443099)
v.
ANDREW EARL CHESHIRE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed.
Elizabeth K. Horowitz, 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, Amanda V. Lopez and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
In 2017, appellant Andrew Earl Cheshire was
convicted of attempted murder. In February 2021, he
petitioned for resentencing under Penal Code section
1170.95, and requested the appointment of counsel.1 The
trial court summarily denied his petition without appointing
counsel, finding both that persons convicted of attempted
murder were ineligible for relief under section 1170.95, and
that even if they were eligible, appellant was not.
On appeal, appellant does not dispute his ineligibility
for relief. Instead, he argues that the court committed
structural error in failing to appoint counsel, requiring
reversal regardless of prejudice. The People agree the court
erred in failing to appoint counsel, but contend the error is
subject to harmless error analysis. The People further
contend the error was harmless because appellant was
necessarily convicted on a finding of malice, and not under
the natural and probable consequences doctrine or the felony
murder rule. We agree with the People and affirm.
STATEMENT OF RELEVANT FACTS
In 2017, appellant was charged by amended
information with one count of attempted murder (§§ 187,
subd. (a) & 664), among other crimes. The jury convicted
appellant of this charge after being instructed with
CALCRIM No. 600, which provides, in pertinent part, that
1 Undesignated statutory references are to the Penal Code.
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the jury could do so only if it found appellant “intended to
kill” the victim. No jury instructions referenced either felony
murder or the natural and probable consequences doctrine.
We affirmed the conviction in 2019 but remanded the matter
to correct an error in custody credits and to permit the court
to exercise its discretion in striking a firearm enhancement.
(People v. Cheshire (May 22, 2019, B286092) 2019
Cal.App.Unpub. LEXIS 3528, *54, review den. Sep. 11, 2019,
S256579.)
In February 2021, appellant filed a petition for
resentencing under section 1170.95, alleging that a
complaint, information, or indictment had been filed against
him that permitted the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine; that he had been convicted
of first or second degree murder; that he could not now be
convicted of first or second degree murder due to the changes
to sections 188 and 189; and requesting the appointment of
counsel. In a declaration accompanying his petition,
appellant admitted he was “convicted under Jury Instruction
600[,] Attempted Murder and 601[,] Attempted Murder:
Deliberation and Premeditation.”2
2 The jury was instructed with CALCRIM No. 601, which
provided that if the jury found appellant guilty of attempted
murder, it was required to decide whether the attempted murder
was done willfully and with deliberation and premeditation; the
instruction explained how to make this determination. The jury
found the premeditation allegation not true.
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In April 2021, the court summarily denied appellant’s
petition, without appointing counsel. The court stated it had
reviewed the jury instructions in the underlying case and
found that the court had instructed the jury as to attempted
murder (CALCRIM No. 600) and deliberate and
premeditated attempted murder (CALCRIM No. 601), and
that there were no other murder-related instructions given;
no instructions on felony murder or the natural and probable
consequences doctrine were given, and the prosecution did
not rely on either of these theories. The court found that
relief under section 1170.95 was unavailable to individuals
convicted of attempted murder, and even if it were available,
appellant “would not fall under the auspices” of section
1170.95. Appellant timely appealed.
DISCUSSION
A. Governing Law
“In 2018, the Legislature enacted Senate Bill No. 1437
. . . .” (People v. Gentile (2020) 10 Cal.5th 830, 838.) “Senate
Bill 1437 ‘amend[ed] the felony murder rule and the natural
and probable consequences doctrine, as it relates to murder,
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.’” (Id. at
842.) Among other things, it “added section 188, subdivision
(a)(3) (section 188(a)(3)): ‘Except [for felony-murder liability]
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as stated in subdivision (e) of Section 189, in order to be
convicted of murder, a principal in a crime shall act with
malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.”
(Id. at 842-843.) Senate Bill No. 1437 also “added section
1170.95 to provide a procedure for those convicted of felony
murder or murder under the natural and probable
consequences doctrine to seek relief . . . .” (People v. Gentile,
supra, at 843.)
In October 2021, the Governor signed Senate Bill No.
775 (2021-2022 Reg. Sess.) (SB 775). As pertinent here, SB
775 modified section 1170.95 to state that a person convicted
of attempted murder under the natural and probable
consequences theory could petition for relief. (§ 1170.95,
subd. (a) [“A person 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 may file a petition
with the court that sentenced the petitioner to have the
petitioner’s murder, attempted murder, or manslaughter
conviction vacated and to be resentenced on any remaining
counts”].)
B. Analysis
On appeal, appellant argues that the superior court
erred in failing to appoint counsel after receiving appellant’s
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facially valid petition, and that this was structural error
requiring reversal per se. While the People agree the court
erred in denying appellant’s petition without appointing
counsel, they contend the error is subject to harmless error
review, and that we should affirm the court’s denial because
appellant is ineligible for relief as a matter of law. We agree.
In People v. Lewis (2021) 11 Cal.5th 952, our Supreme
Court held that “the deprivation of [a section 1170.95
petitioner]’s right to counsel under subdivision (c) of section
1170.95 [i]s state law error only, tested for prejudice under
People v. Watson (1956) 46 Cal.2d 818.” (Id. at 957-958.) We
are bound by the pronouncements of our Supreme Court.
(See, e.g., Davis v. Honeywell Internat. Inc. (2016) 245
Cal.App.4th 477, 493.)
Here, appellant admits his conviction of attempted
murder occurred pursuant to CALCRIM No. 600, meaning
that the jury necessarily found he acted with an intent to
kill. “Malice is express when there is manifested a
deliberate intention to unlawfully take away the life of a
fellow creature.” (§ 188, subd. (a)(1).) Thus, by convicting
appellant of attempted murder, the jury necessarily found he
acted with malice. Further, no jury instructions discussed
either felony murder or the natural and probable
consequences doctrine, and appellant points to nothing in
the record indicating the prosecution proceeded under either
theory. Because the jury instructions demonstrated as a
matter of law that appellant was ineligible for relief, any
error in failing to appoint counsel was harmless. (People v.
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Soto (2020) 51 Cal.App.5th 1043, 1059, review granted Sep.
23, 2020, review dismissed Nov. 17, 2021, S263939 [no error
in denying petition when jury instructions demonstrate as a
matter of law that petitioner is not entitled to relief].)
DISPOSITION
The order denying appellant’s section 1170.95 petition
is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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