People v. Delange CA2/6

Filed 1/3/23 P. v. Delange CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B312629
(Super. Ct. No. YA083919
(Los Angeles County)
Plaintiff and Respondent,
v.
MORGAN TYLER DELANGE,
Defendant and Appellant.
Morgan Tyler Delange appeals an order denying his
petition for resentencing pursuant to former Penal Code section
1170.95 (renumbered section 1172.6 without substantive
change).1 The Attorney General concedes that the trial court
All statutory references are to the Penal Code unless
1
stated otherwise.
erred by not granting the resentencing petition pursuant to
section 1172.6, subdivision (d)(2).2 (People v. Flint (2022) 75
Cal.App.5th 607, 614.) Accordingly, we reverse the order, vacate
the murder conviction, and remand for resentencing. (People v.
Buycks (2018) 5 Cal.5th 857, 893 [“full resentencing rule”
authorizes trial court to modify every aspect of sentence upon
resentencing].)
FACTUAL AND PROCEDURAL HISTORY
Delange’s resentencing petition concerns his 2014
conviction of first degree murder, kidnapping, first degree
burglary, second degree robbery, and vehicle theft. (§§ 187, subd.
(a), 189, 207, subd. (a), 459, 211; Veh. Code, § 10851, subd. (a).)
At Delange’s trial, the prosecution asserted that its theory of
liability for first degree murder was felony murder committed
during a robbery or burglary. The jury decided, however, that
the felony-murder special-circumstance allegation was not true.
(§ 190.2, subd. (a)(17).) Delange appealed. We rejected
arguments based upon Miranda v. Arizona (1966) 384 U.S. 436,
479 [16 L.Ed.2d 694, 726] and sentencing, and affirmed. (People
v. Alfano & Delange (Sept. 26, 2016, B258685) [nonpub. opn.].)
The trial court sentenced Delange to a prison term of 33
years to life, consisting of a 25-years-to-life term for the murder
conviction plus an eight-year upper term for the kidnapping
conviction. The court imposed sentence for the burglary, robbery,
2 In relevant part, section 1172.6, subdivision (d)(2) states:
“If there was a prior finding by a court or jury that the petitioner
did not act with reckless indifference to human life or was not a
major participant in the felony, the court shall vacate the
petitioner’s conviction and resentence the petitioner.”
2
and vehicle theft convictions, but stayed execution of sentence
pursuant to section 654.
On March 13, 2019, Delange filed a section 1172.6 petition
for resentencing alleging that his murder conviction rested upon
the felony murder or the natural and probable consequences
doctrines. The trial court appointed counsel for Delange,
permitted the parties to file written arguments, and issued an
order to show cause. The court then denied the petition at the
evidentiary hearing stage, finding that Delange was a major
participant in the underlying felonies who acted with reckless
indifference to human life. In its ruling, the court concluded:
“Delange was an equal participant in the killing of victim
[Norman] Mangus. Natural and probable consequence
instructions were not given to the jury. Both defendants actually
and jointly killed the victim, even if the defendant was not the
actual killer, his actions and conduct demonstrate that he was a
major participant in the killing of victim Mangus. He acted with
reckless indifference to Mr. Mangus’[s] life by zip tying Mr.
Mangus’[s] unconscious body, carrying that body to the side of his
house, . . . [and] he was aware that the victim, Mr. Mangus, was
not going to wake up.”3 (Capitalization omitted.)
Summary of Trial Evidence
On March 23, 2012, Torrance police officers received an
inquiry concerning the welfare of 67-year-old Norman Mangus. A
police officer visited Mangus’s home that evening and found
Mangus’s body outside the residence. Zip-ties restrained
Mangus’s ankles, a cloth belt circled his neck, and a beanie cap
was stuffed into his mouth. An autopsy later established that
3The trial judge had presided over the underlying jury trial
of Delange and his codefendant, Joshua Alfano.
3
Mangus died from strangulation and had fractured ribs and
abrasions. Weeks earlier, Mangus informed a friend that former
boarder Joshua Alfano had assaulted him on two occasions and
taken cash and jewelry.
Earlier, Delange and Alfano became roommates. They
informed a neighbor that they were planning to wear beanie cap
masks to rob someone. They also tied the neighbor’s feet with
zip-ties as a prank.
Following the murder, police officers executed a search
warrant at the Alfano/Delange residence and found Mangus’s
financial documents, wallet, and automobile registration, among
other things. DNA of Alfano and Delange was found on a glove
located near Mangus’s body and the beanie cap used to muffle
Mangus. Alfano and Delange later sold Mangus’s automobile and
television set. During police interviews, Alfano and Delange each
blamed the other for killing Mangus.
The jury convicted codefendant Alfano of first degree
murder and the special circumstance that Alfano committed the
murder during the course of a robbery or burglary. Although the
jury convicted Delange of first degree murder, it did not find true
the special circumstance of murder committed during the course
of a robbery or burglary.
Delange appeals the denial of his resentencing petition and
asserts that the trial court was obligated to grant his petition
because the jury found that the special circumstance allegation
was not true. The Attorney General concedes based upon section
1172.6, subdivision (d)(2), and recent judicial decisions. (E.g.,
People v. Flint, supra, 75 Cal.App.5th 607, 614.)
4
DISCUSSION
Section 1172.6 authorizes a defendant “convicted of felony
murder or murder under the natural and probable consequences
doctrine” (id., subd. (a)) to challenge his murder conviction if, as a
threshold matter, he makes a “prima facie showing” of
entitlement to relief. (Id., subd. (c).) This, in turn, requires a
showing that, among other things, he “could not presently be
convicted of murder” under the amendments to the murder
statutes that became effective on January 1, 2019. (Id., subd.
(a)(3).) These statutes, even as amended, still authorize a
murder conviction, however, based on murder committed by
someone else in the course of a jointly committed felony as long
as the defendant “was a major participant in the underlying
felony and acted with reckless indifference to human life.” (§ 189,
subd. (e)(3).)
Section 1172.6, subdivision (d)(2) provides a streamlined
process for relief where a petitioner has already obtained a
finding that he “did not act with reckless indifference to human
life or was not a major participant in the felony.” (People v. Flint,
supra, 75 Cal.App.5th 607, 615; People v. Ramirez (2019) 41
Cal.App.5th 923, 932.) In that situation, the trial court “shall
vacate the petitioner’s conviction and resentence the petitioner.”
(§ 1172.6, subd. (d)(2).)
The only theory of murder liability presented at Delange’s
trial was felony murder. This theory permitted the jury to
convict Delange of first degree murder if either he or Alfano were
the actual killer of Mangus during the burglary or robbery, even
if the killing was unintentional. (CALCRIM No. 540B.) The jury
was not instructed regarding malice murder.
5
At Delange’s trial, the prosecution had an opportunity to
prove that Delange was a major participant in the underlying
felonies who acted with reckless indifference to human life. Jury
instructions informed the jury to find the felony-murder special-
circumstance allegation true if jurors were satisfied beyond a
reasonable doubt that either of two possibilities was true:
Delange aided and abetted first degree murder with the intent to
kill, or was a major participant in the underlying felonies acting
with reckless indifference to human life. (CALCRIM No. 703
[defendant not actual killer].) The court also instructed that the
prosecution need not prove that the actual killer acted with the
intent to kill or with the reckless indifference to human life to
establish the felony murder special circumstance. (Ibid.) The
jury rejected the special-circumstance theory of murder
committed during the course of robbery or burglary. This finding
now triggers section 1172.6, subdivision (d)(2). (People v. Flint,
supra, 75 Cal.App.5th 607, 615.)
In view of our discussion, it is not necessary to discuss
Delange’s remaining contentions.
DISPOSITION
The order denying the petition for resentencing is reversed,
and the matter remanded to the trial court with directions to
vacate the murder conviction and resentence appellant.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J. BALTODANO, J.
6
Mark S. Arnold, Judge
Superior Court County of Los Angeles
______________________________
David L. Polsky, 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, Assistant
Attorney General, Scott A. Taryle and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.