People v. Bailey CA2/2

Filed 10/25/21 P. v. Bailey CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B311188
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA218152)
v.
LAWRENCE LEE BAILEY,
Defendant and Appellant.
THE COURT:
Lawrence Lee Bailey (defendant) appeals from an order
entered by the trial court denying his postjudgment petition to
vacate his murder conviction pursuant to Penal Code section
1170.95.1 Counsel was appointed to represent defendant in
connection with this appeal. After examination of the record,
counsel filed a brief in which no arguable issues are raised and
asked this court for an independent review of the record under
People v. Wende (1979) 25 Cal.3d 436 (Wende). On September 20,
1 All further statutory references are to the Penal Code.
2021, we advised defendant that he had 30 days within which to
personally submit any contentions or issues for us to consider.
We also granted defendant’s unopposed request to take judicial
notice of the record in his 2003 direct appeal. On October 15,
2021, this court granted defendant’s request for an extension of
time to file a supplemental brief to November 19, 2021. On
October 18, 2021, defendant filed a supplemental brief.
Pending review by our Supreme Court, we follow our prior
holding that the Court of Appeal has no independent duty under
Wende to review the entire record for reasonably arguable issues
on an appeal from an order denying postconviction relief, if
counsel files a brief declaring there are no reasonably arguable
issues. (People v. Cole (2020) 52 Cal.App.5th 1023, 1038–1039,
review granted Oct. 14, 2020, S264278 (Cole).) Where, as here,
the defendant files a supplemental brief, “the Court of Appeal is
required to evaluate any arguments presented in that brief and
to issue a written opinion that disposes of the trial court’s order
on the merits (that is, by affirming, reversing or other like
disposition).” (Cole, at p. 1040.) Thus, “this court has the duty to
address any issues raised by the defendant but otherwise may
dismiss the appeal without conducting an independent review of
the record.” (Id. at p. 1028.) We have considered the arguments
presented in defendant’s supplemental brief and affirm the
judgment.
A jury convicted Bailey and codefendant Judge Roberts in
2002 of one count of first degree murder in the shooting death of
Patrick Fulton.2 (§ 187, subd. (a).) The jury found true the
2We summarize the factual background and some of the
procedural history from our opinion affirming defendant’s
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allegations that defendants each personally and intentionally
used and discharged a firearm causing death (§§ 12022.5, subd.
(a)(1), 12022.53, subds. (b), (c), (d), (e)(1), 1203.06, subd. (a)(1)),
and that they committed the murder for the benefit of a criminal
street gang, with the specific intent to promote, further, and
assist in criminal conduct by gang members (§ 186.22, subd.
(b)(1)). Bailey was sentenced to 50 years to life, plus another 10
years for a gang enhancement pursuant to 186.22, subdivision
(b)(1). We affirmed Bailey’s conviction on direct appeal in 2003,
with the exception that the gang enhancement be modified to
reflect the three-year term in effect at the time of the offense,
rather than the 10-year term imposed by the trial court. (People
v. Bailey et al., supra, B159578.) Bailey subsequently sought,
and was denied, habeas relief in the trial court, the Court of
Appeal (Oct. 26, 2004, B178208) [petn. for writ of habeas corpus
den.]), the California Supreme Court (Nov. 15, 2006, S141381,
Nov. 16, 2005, S130267), and the United States District Court for
the Central District of California (Bailey v. Woodford (C.D. Cal.,
Oct. 8, 2010, No. CV 06-4152 JFW JC) [2010 U.S. Dist. LEXIS
120458, 2010 WL 4702348], Rep. and recommendation adopted
(C.D. Cal., Nov. 12, 2010, No. CV 06-4152 JFW JC) [2010 U.S.
Dist. LEXIS 120278, 2010 WL 4702273]). Defendant’s
supplemental brief maintains his factual innocence.
As an avenue for postconviction relief, section 1170.95
“empowers a defendant convicted of murder to vacate his murder
conviction if it was based upon a theory of vicarious liability—
and, in particular, upon a theory of felony murder or natural and
probable consequences—unless he acted with the intent to kill or
judgment. (See People v. Bailey et al. (Nov. 12, 2003, B159578)
[nonpub opn.], review den. Jan. 28, 2004, S130267.)
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was ‘a major participant’ in an underlying felony and ‘act[ed]
with reckless indifference to human life’; it does not provide relief
to a ‘person [who] was the actual killer.’ ” (Cole, supra, 52
Cal.App.5th at p. 1030; § 1170.95; see also §§ 188, 189, subd. (e).)
Here, Bailey’s conviction was not based on a theory of
felony murder or murder under the natural and probable causes
doctrine. Rather, a jury convicted Bailey of first degree murder
(§ 187, subd. (a)), finding that he personally and intentionally
used and discharged a firearm causing death (§§ 12022.5, subd.
(a)(1), 12022.53, subds. (b), (c), (d), (e)(1), 1203.06, subd. (a)(1))
and that he committed the murder for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)). Bailey is thus categorically
ineligible for postconviction relief pursuant to section 1170.95, as
a matter of law. (See People v. Cornelius (2020) 44 Cal.App.5th
54, 58, review granted Mar. 18, 2020, S260410 [where record of
conviction showed defendant personally used a firearm, “the jury
implicitly found [defendant] was the ‘actual killer,’ ” making him
ineligible for relief under section 1170.95].) The law does not
permit us to revisit the facts underlying Bailey’s current
conviction, which we have affirmed; thus, he has not raised any
arguable issues for reversal on appeal.
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED.
LUI, P.J. ASHMANN-GERST, J. CHAVEZ, J.
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