People v. Petillo CA2/2

Filed 1/23/23 P. v. Petillo CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B320732
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA077777)
v.
SIDNEY ANDREW PETILLO,
Defendant and Appellant.
THE COURT:
Defendant and appellant Sidney Andrew Petillo appeals
from the order denying his petition filed pursuant to Penal Code
section 1172.6 (former § 1170.95).1 Appointed counsel filed a
1 Effective June 30, 2022, Penal Code former section 1170.95
was renumbered section 1172.6, with no change in text. (Stats.
brief raising no issues and asked this court to conduct an
independent review for arguable issues pursuant to People v.
Wende (1979) 25 Cal.3d 436. Where appointed counsel finds no
arguable issues in an appeal seeking postjudgment relief, the
appellate court is not required to conduct such an independent
review of the record. (People v. Cole (2020) 52 Cal.App.5th 1023,
1039-1040, review granted Oct. 14, 2020, S264278; see People v.
Serrano (2012) 211 Cal.App.4th 496, 503.) Instead, the
defendant is given the opportunity to file his or her own
supplemental brief or letter. If a defendant submits a letter or
brief, we review the contentions or arguments set forth therein.
However, if a defendant does not file a supplemental brief or
letter, the appeal may be dismissed as abandoned. (People v.
Cole, supra, at pp. 1039-1040.) Defendant was notified of the
court’s policy and failed to file any supplemental brief or letter.
Regardless, we have read the several petitions filed by defendant
in this matter and made part of the record on appeal, including a
petition filed after the current appeal was filed. We find
defendant’s admissions in the petitions are sufficient to show that
there are no arguable issues in the current appeal. We thus
affirm the trial court’s order.
BACKGROUND
In 1993 defendant was charged with the first degree
murder of Duanne Jones. It was further alleged that in the
2022, ch. 58, § 10.) We will refer to the section by its new number
only.
All further unattributed code sections are to the Penal Code
unless otherwise stated.
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commission of the crime, defendant personally used a firearm,
within the meaning of section 12022.5, subdivision (a). A jury
found defendant guilty of second degree murder and found true
the firearm allegation. On August 11, 1994, the trial court
sentenced defendant to 15 years to life in prison, plus a four-year
firearm enhancement.
Effective January 1, 2019, the Legislature amended the
laws pertaining to felony murder and murder under 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
Legislature also added what is now section 1172.6, which
provides a procedure for convicted murderers to seek retroactive
relief if they could not be convicted under sections 188 and 189 as
amended effective January 1, 2019. (People v. Lewis (2021) 11
Cal.5th 952, 957.)
In August and September 2021, defendant filed pro se
petitions for writ of habeas corpus and for relief under section
1172.6.2 Although defendant’s handwriting is largely illegible, it
appears defendant asserted that, as stated in the police report, he
approached Jones to question him about defendant’s property
Jones had stolen when Jones made a movement as if to draw a
2 Defendant’s habeas petitions raised other issues, including
ineffective assistance of counsel, which we do not address, as the
denial of a petition for habeas corpus is not appealable. (See In re
Clark (1993) 5 Cal.4th 750, 767, fn. 7, superseded by statute on
other grounds as stated in Briggs v. Brown (2017) 3 Cal.5th 808,
842.)
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weapon. Defendant then reacted with “a split second decision” to
fire “two deadly bullet rounds . . . .” Defendant essentially
alleged that he lacked a willful, premeditated intent to kill Jones
and that he flinched when Jones moved, causing his gun to fire.
On September 29, 2021, the trial court denied the petitions,
finding that defendant had failed to make a prima facie showing
under section 1172.6 and that some of the required information
was missing. Two days later, defendant submitted another
handwritten petition seeking relief under section 1172.6. The
trial court found the request for 1172.6 relief to be so
unintelligible and difficult to understand, that the court was
concerned about defendant’s ability to provide understandable
legal details. The court thus appointed counsel for defendant,
ordered the prosecution to file a response, scheduled defendant’s
reply, if any, and set the matter for a hearing.
In its response to the petition, the prosecution summarized
facts taken from defendant’s 1994 trial.3 The prosecution averred
that after the murder victim burglarized defendant’s home and
stole various items, defendant and a companion each armed with
a handgun, saw and then approached the victim on a corner with
other people. Within seconds defendant fired several rounds, and
the victim, after running approximately one block from the scene
of the shooting, collapsed and died. The prosecution also alleged
that the jury was not instructed on a felony murder theory, the
natural and probable consequences doctrine, or aiding and
abetting and concluded that defendant was convicted as the
3 The prosecution represented that the record excerpts,
which were in electronic format, were submitted with the brief.
These exhibits have not been included in the current record on
appeal.
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actual killer and that he was not entitled to relief under section
1172.6.
Defense counsel filed no reply, and at the March 10, 2022
hearing on the petition, he stated that he had reviewed the court
file, had conferred with defendant, and would submit the matter
on the prosecution’s opposition. Counsel did not argue that the
prosecutor’s summary of the facts was other than represented or
that the jury was instructed regarding felony murder, the natural
and probable consequences doctrine, or aiding and abetting.
The trial court noted it had read and reviewed the
prosecution’s response, including the trial transcripts and jury
instructions provided, and found defendant had not been
convicted of felony murder, murder under the natural and
probable consequences doctrine, and not as an aider and abettor,
but rather as the actual killer. Concluding defendant had failed
to make a prima facie showing that he was intitled to relief under
section 1172.6, the court denied the petition. The court issued a
memorandum of decision the following day. Counsel filed a
timely notice of appeal on defendant’s behalf on April 6, 2022.
On April 22, 2022, defendant filed another pro se section
1172.6 petition, along with another petition for writ of habeas
corpus, as well as a document entitled, “Response to notice of
denial on [1172.6] Resentencing P.C.” This time, the section
1172.6 petition was presented partially on a preprinted form that
alleged the three conditions for vacatur of defendant’s murder
conviction and for resentencing set forth in section 1172.6,
subdivision (a).4 Defendant again wrote that he did not intend to
4 The petition essentially alleged (1) that a charge was filed
against him that allowed the prosecution to proceed under a
theory of felony murder or the natural and probable consequences
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kill Jones and that under the murder law effective January 1,
2019, he “could not be found guilty for 2nd degree murder, malice
aforethought now.” Defendant asserted that it was “not sufficient
to establish reckless endangerment to human life under imputed
malice . . . .” On or about April 25, 2022, the trial court issued a
memorandum of decision denying defendant’s April petitions as
successive with no allegation of change in circumstances.
Defendant did not appeal that order.
Since the1994 trial record has not been included in the
record of appeal, and as defendant has not filed a supplemental
brief or letter stating any issues he wished to have considered, we
have not reviewed it and may dismiss the appeal as abandoned
without doing so. (See People v. Cole, supra, 52 Cal.App.5th at
pp. 1039-1040, review granted.) However, we have reviewed the
petitions filed by defendant in this matter, including the petition
filed after the current appeal was taken, and we find that
defendant’s admissions are sufficient to show that the trial court
correctly found that defendant did not establish prima facie
eligibility under section 1172.6.
It was defendant’s burden to make a prima facie showing
that he was entitled to relief. (§ 1172.6, subd. (c).) As relevant to
defendant, he was required to make a prima facie showing that
he was convicted 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,” and that he could not be so convicted
doctrine, (2) that he was convicted of murder following a trial,
and (3) that he could not presently be convicted of murder
because of changes to section 188 or 189 made effective
January 1, 2019.
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under the amended murder statutes. (§ 1172.6, subd. (a); see
People v. Flores (2022) 76 Cal.App.5th 974, 985-986.)
Defendant was convicted of second degree murder, and all
through his many petitions, he has admitted that he was the
actual shooter, although he claims he had no intent to kill Jones
and did not premeditate the killing, intending only to ask Jones
about the property he had stolen, but he flinched when Jones
moved, causing his gun to fire the bullets that struck Jones.
Defendant appears to have been under the mistaken belief that
“malice aforethought” means premeditation. It does not.
“‘[M]alice aforethought’ [is] not synonymous with ‘willful,
deliberate, and premeditated’ intent.” (People v. Thomas (1945)
25 Cal.2d 880, 901.)
Second degree murder is the unlawful killing of a human
being with malice aforethought that is not willful, deliberate and
premeditated, and may be express or implied. (§§ 187, subd. (a),
188, 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) Malice
is express “when there is manifested a deliberate intention to
unlawfully take away the life of a fellow creature.” (§ 188, subd.
(a)(1).) “‘Malice is implied when the killing is proximately caused
by “ ‘an act, the natural consequences of which are dangerous to
life, which act was deliberately performed by a person who knows
that his conduct endangers the life of another and who acts with
conscious disregard for life.’” [Citation.] In short, implied malice
requires a defendant’s awareness of engaging in conduct that
endangers the life of another . . . .’” (People v. Cravens (2012) 53
Cal.4th 500, 507; see § 188, subd. (b).) Intentionally brandishing
a firearm and firing it in the victim’s direction may be the basis
for a finding of implied malice, even if firing the weapon shooting
was accidental. (Nieto Benitez, supra, at pp. 109-110.) The
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question for the jury in such a case is whether the defendant was
subjectively aware of the danger; for example, did he subjectively
know the gun was loaded? (Ibid.; also cf. People v. Boatman
(2013) 221 Cal.App.4th 1253, 1263 [defendant pulled back
hammer knowing the gun was loaded].)
Defendant’s allegation that he flinched when Jones moved,
causing his gun to fire, was tantamount to an admission that he
brandished a loaded firearm at Jones. However, he did not allege
in his petitions or argue to the trial court that any fact,
instruction, or other detail in the record of conviction indicates
that the jury based its verdict on 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.” (§ 1172.6, subd.
(a)(1).)
Following amendment to sections 188 and 189, liability of
the actual killer remains a valid theory of liability for second
degree implied malice murder that is not based upon the natural
and probable consequences doctrine. (See People v. Gentile (2020)
10 Cal.5th 830, 850-851.) We conclude that defendant failed to
make a prima facie showing that he is not liable for second
degree murder under the amended statutes, and thus the trial
court did not err.
DISPOSITION
The order denying the section 1172.6 petition is affirmed.
___________________________________________________________
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
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