People v. Boyd CA4/3

Filed 3/9/23 P. v. Boyd CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061628
v. (Super. Ct. No. RIF1105003)
BOMANI LAWAN BOYD, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Riverside
County, Judith C. Clark, Judge. Affirmed.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
This appeal is from an order denying appellant’s petition for resentencing
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under former Penal Code section 1170.95. Appointed counsel filed a so-called Wende
brief in which she advised us that, after thoroughly reviewing the record, she and another
staff attorney at Appellate Defenders, Inc. had not uncovered any arguable issues to raise
on appellant’s behalf. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) In response
to our invitation, appellant filed a supplemental brief on his own behalf. Having
considered appellant’s brief, and having reviewed the entire record as required under
Wende, we conclude there is no arguable basis for disturbing the trial court’s ruling.
Accordingly, we affirm its order denying appellant’s resentencing petition.
PROCEDURAL BACKGROUND
In 2012, appellant was convicted of two counts of attempted premeditated
murder and street terrorism for shooting at two rival gang members. (§§ 664/187, subd.
(a); 186.22, subd. (a).) The jury also found true allegations appellant personally
discharged a firearm, caused great bodily injury, and acted for the benefit of a criminal
street gang. (§§ 12022.53, subds. (c), (d); 12022.7, subd. (a).) The trial court sentenced
him to prison for 55 years to life, plus a determinate term of 23 years.
On appeal, we reversed appellant’s conviction for street terrorism because it
was undisputed that he acted alone when he shot at the victims. (People v. Boyd (May 1,
2014, G049627) [nonpub. opn.].) But in all other respects, we affirmed the judgment.
On January 14, 2022, appellant petitioned for resentencing under former
section 1170.95. After appointing appellant an attorney, the trial court held a hearing on
July 22. There were actually two matters on calendar that day, appellant’s resentencing
petition and his request for a Franklin proceeding. (See People v. Franklin (2016) 63
Cal.4th 261 (Franklin) [qualified offenders are entitled to make a record of youth-related
factors for use in their future parole hearings].) Not having read appellant’s case file, the
1
That section has since been renumbered without substantive change as Penal Code section 1172.6.
(Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code.
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court was inclined to continue both matters. However, the prosecutor asked the court to
take up appellant’s petition for resentencing. He argued appellant was not eligible for
resentencing as a matter of law because his jury was not instructed on felony murder,
aiding and abetting, or the natural and probable consequences doctrine.
Defense counsel did not take issue with the prosecutor’s representation
about the jury instructions that were given in appellant’s case, nor did he offer any
substantive response to the prosecutor’s argument. Rather, he simply submitted the
matter for the court’s consideration based on what the prosecutor had stated. In light of
that, the court denied appellant’s petition for resentencing and continued the Franklin
matter to another day.
DISCUSSION
The only issue before us is the propriety of the trial court’s decision to deny
appellant’s petition for resentencing. For the reasons explained below, there is no basis
to disturb that ruling.
Per section 1172.6, a person may petition for resentencing if he was
“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[.]” (§ 1172.6, subd. (a).)
Thus, while a murderer may seek resentencing if he was convicted under
any theory of imputed liability, an attempted murderer can only petition if he was
convicted under one particular theory of imputed liability, that being the natural and
probable consequences doctrine. Having been convicted of attempted murder, appellant
contends this is patently unfair. As a matter of equal protection, he argues that, like
persons convicted of murder, he should be able to seek resentencing if he was convicted
under any theory of imputed liability, not just the natural and probable consequences
doctrine.
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However, even if that were the case, appellant would still not be eligible for
resentencing. That’s because imputed liability has a specific meaning under section
1172.6. Under the statute, such liability is limited to when “malice is imputed to a person
based solely on that person’s participation in a crime[.]” (§ 1172.6, subd. (a).) It does
not include the situation in which the defendant personally harbors malice, which is what
the jury found in this case by convicting appellant of attempted murder with
premeditation and deliberation. Therefore, appellant is outside the scope of the statute.
Appellant also contends the trial court prejudicially erred by failing to
conduct an independent review of the court file to ensure the accuracy of the prosecutor’s
representation that he was not convicted based on a theory of imputed liability such as the
felony murder rule or the natural and probable consequences doctrine.2 However, given
that defense counsel did not dispute that representation, the trial court was entitled to rely
on it as the basis for its ruling. (See generally People v. Fedalizo (2016) 246 Cal.App.4th
98, 107 [“Courts routinely rely on the express or implied representations of attorneys, as
officers of the court, on a wide range of matters.”].)
Moreover, as we pointed out in appellant’s appeal, the parties are in
agreement that appellant acted alone in this case, which is why his street terrorism
conviction was reversed. (People v. Boyd, supra, G049627.) Since it is undisputed that
appellant was convicted of attempted premeditated murder for his own actions and his
own mental state, he was not convicted on a theory of imputed liability. Therefore, he is
ineligible for resentencing as a matter of law, and any error in the trial court’s handling of
his petition was harmless under any standard of review.
Appellant’s claim to the contrary is without merit, and our independent
review of the record has failed to reveal any possible grounds for appellate relief.
2
Appellant’s attorney also flagged this as a potential issue in his Wende brief.
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Accordingly, we are powerless to disturb the trial court’s ruling. (Wende, supra, 25
Cal.3d 436.)
DISPOSITION
The trial court’s order denying appellant’s petition for resentencing is
affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
GOETHALS, J.
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