People v. Cox CA2/2

Filed 11/2/22 P. v. Cox 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B313725
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA076997)
v.
GLENN MARTIN COX,
Defendant and Appellant.
THE COURT:
Defendant and appellant Glenn Martin Cox appeals from
the trial court’s denial of his petition for resentencing under
former Penal Code section 1170.95,1 which allows defendants
convicted of felony murder under superannuated legal standards
to seek resentencing relief.
1 All further statutory references are to the Penal Code
unless otherwise indicated. Former section 1170.95 has since
been renumbered as section 1172.6, with no substantive changes.
Cox’s appointed counsel found no arguable issues and filed
a brief under People v. Wende (1979) 25 Cal.3d 436 (Wende),
asking this court to independently review the record. Under the
standard we articulated in People v. Cole (2020) 52 Cal.App.5th
1023 (Cole), review granted October 14, 2020, S264278,2 we
decline counsel’s invitation to undertake an independent review
of the record. Instead, we evaluate each of the arguments Cox
raises in his letter brief. (Cole, supra, at pp. 1039–1040.)
Finding none of Cox’s arguments meritorious, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Murder Trial and Resulting Convictions
After a shooting at a New Year’s Eve party resulted in one
death and numerous injuries, Cox and two codefendants were
charged with one count of murder (§ 187, subd. (a)) and three
counts of attempted murder (§ 664; see also § 187, subd. (a)). Cox
2 There is currently a split in authority as to whether the
independent review mandated by Wende applies to an appeal
from the denial of a petition filed pursuant to former section
1170.95. (Compare Cole, supra, 52 Cal.App.5th at 1028 [“Wende’s
constitutional underpinnings do not apply to appeals from the
denial of postconviction relief”]; People v. Figueras (2021) 61
Cal.App.5th 108, 111 [same], review granted May 12, 2021,
S267870; and People v. Gallo (2020) 57 Cal.App.5th 594, 599
[“dismissal is discretionary, and . . . we can and should
independently review the record on appeal in the interests of
justice”]; People v. Allison (2020) 55 Cal.App.5th 449, 456 [same].)
The issue is currently pending before the Supreme Court. (People
v. Delgadillo (Nov. 18, 2020, B304441 [nonpub. opn.], review
granted Feb. 17, 2021, S266305.) Pending guidance from the
Court in Delgadillo, we continue to adhere to the reasoning set
forth in Cole.
2
and his compatriots, admitted gang members, were accused of
opening fire on the partygoers following a brief confrontation
earlier in the day with persons they perceived to be rivals or
targets of their gang. (See People v. Weddle (Feb. 1, 2012,
B226368) [nonpub. opn.].)
The prosecution attached a flurry of special allegations to
Cox’s charges. First, it alleged that he had committed all four
counts “for the benefit of, at the direction of, or in association
with a criminal street gang, with the specific intent to promote,
further, or assist in criminal conduct by gang members.”
(§ 186.22, subd. (b)(1).) Next, it alleged three firearm
enhancements for Cox’s “personal[] [and intentional] use of a
firearm [or handgun]” (§ 12022.53, subd. (b)), his “personal[] and
intentional[] discharge[] [of] a firearm [or handgun]” (§ 12022.53,
subd. (c)), and for the “great bodily injury [and] death” which his
discharge of the handgun proximately caused (§ 12022.53, subd.
(d)). It also alleged separate firearm enhancements for the
“personal[] and intentional[]” use and discharge of a firearm or
handgun proximately causing great bodily injury and death by a
principal of the crime (§ 12022.53, subds. (d), (e)(1)). Lastly, it
alleged that Cox had previously committed two prior serious or
violent felonies or juvenile adjudications. (§§ 1170.12, subds. (a)-
(d), 667, subds. (b)-(i).)
In 2010, a jury convicted Cox on all counts. It found true
on all counts the allegations that a principal had personally and
intentionally discharged a firearm proximately causing great
bodily injury or death, and that Cox had personally and
intentionally used and discharged a firearm.
The trial court sentenced Cox to 75 years to life on the
murder conviction, with an additional 25 years to life for the
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firearm allegation. On each of the three attempted murder
convictions, the trial court sentenced Cox to consecutive life
terms. The trial court added an additional five years to each of
the aforementioned sentences for one of his prior serious felonies,
and stayed sentencing on the gang allegations.3
Cox’s case went up on appeal, and the judgment and
sentence were affirmed. (People v. Weddle, supra, B226368, at
p. 1.)
II. Petition for Resentencing
On September 30, 2018, the Governor signed Senate Bill
No. 1437 (2017–2018 Reg. Sess.) (Sen. Bill 1437) in order to
“amend 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
Effective January 1, 2019, Sen. Bill 1437 added former
section 1170.95, subd. (a), creating a procedure whereby a person
convicted of, as relevant here, “murder under . . . [any] theory
under which malice is imputed to a person based solely on that
person’s participation in a crime, [or] attempted murder under
the natural and probable consequences doctrine,” but who could
not now be convicted, can petition to have the murder conviction
vacated and to be resentenced. (Stats. 2018, ch. 1015, § 4.)
On July 29, 2020, Cox filed a petition for resentencing
pursuant to former section 1170.95. On June 25, 2021, the trial
court denied the petition, finding, among other things, that “as a
3 The trial court struck Cox’s second serious felony
conviction.
4
matter of law . . . [Cox] has not made the prima facie showing
that he is entitled to relief.” The court reasoned that “[t]he
prosecution did not pursue a felony murder theory,” that the jury
was not instructed on felony murder or natural and probable
consequences theory, and that Cox “was found to have personally
used a firearm in the commission of the murder.”4
This appeal followed. Cox’s appointed counsel filed a brief
pursuant to Wende, supra, 25 Cal.3d 436 raising no issues.5
On June 27, 2022, we notified Cox of his counsel’s brief and
gave him leave to file his own brief or letter stating grounds for
appellate relief. On July 25, 2022, he filed a letter brief.
4 The trial court held that the three attempted murder
convictions were not eligible for resentencing relief under former
section 1170.95 pursuant to People v. Lopez (2019) 38
Cal.App.5th 1087 (Lopez), review granted November 13, 2019,
S258175. Lopez has since been superseded by Senate Bill
No. 775 (2021-2022 Reg. Sess.), which extends the provisions of
former section 1170.95 to cover convictions for attempted murder.
(Stats. 2021, ch. 551.) However, the trial court alternately found
that, like the murder conviction, the attempted murder
convictions were not obtained on an imputed malice theory.
5 As mentioned above, we have held that “the procedures set
forth in Wende do not apply to appeals from the denial of
postconviction relief,” such as the resentencing relief provided by
former section 1170.95. (Cole, supra, 52 Cal.App.5th at 1032.)
However, counsel has similar duties when representing a
defendant appealing from the denial of postconviction relief. (Id.
at p. 1038 [requiring counsel to independently review the entire
record, and, if they determine that there are no reasonably
arguable issues, file a brief stating as much].)
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DISCUSSION
Per our opinion in Cole, we will “evaluate any arguments
presented” by Cox’s brief, but will not undertake an “independent
. . . review [of] the record for reasonably arguable issues.” (Cole,
supra, 52 Cal.App.5th at pp. 1039–1040.)
Cox presents us with four basic arguments on appeal, none
of which demonstrate that he is entitled to relief under former
section 1170.95. We address each of these arguments in turn.
I. Cox’s Convictions Were Not Prosecuted on a Theory
of Imputed Malice
A. Cox was prosecuted as a direct aider and abettor
First, Cox contends that his murder and attempted murder
convictions are covered by former section 1170.95 because,
contrary to the trial court’s findings, the prosecution did employ a
theory of imputed malice at Cox’s trial.
Cox’s argument ignores the distinction between liability
based on a direct aiding and abetting theory and liability based
on imputed malice. “Our law recognizes two forms of liability for
aiders and abettors. [Citation.] First, under direct aiding and
abetting principles, an accomplice is guilty of an offense
perpetrated by another if the accomplice aids the commission of
that offense with ‘knowledge of the direct perpetrator’s unlawful
intent and [with] an intent to assist in achieving those unlawful
ends.’ [Citation.] [¶] Second, under the natural and probable
consequences doctrine, an accomplice is guilty not only of the
offense he or she directly aided or abetted (i.e., the target
offense), but also of any other offense committed by the direct
perpetrator that was the ‘natural and probable consequence’ of
the crime the accomplice aided and abetted.” (People v. Gentile
(2020) 10 Cal.5th 830, 843 (Gentile), superseded by statute on
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another ground as stated in People v. Hola (2022) 77 Cal.App.5th
362, 369–370.)
These two theories are primarily distinguished by their
different intent requirements. The latter essentially transfers
the actual killer’s intent “‘to a person based solely on his or her
participation in [the] crime’” which resulted in the killing.
(Gentile, supra, 10 Cal.5th at p. 847.) The former, however,
requires “a combination of the direct perpetrator’s acts and the
aider and abettor’s own acts and own mental state.” (People v.
McCoy (2001) 25 Cal.4th 1111, 1117 (italics in original).) In other
words, “when a person ‘chooses to become a part of the criminal
activity of another, []he says in essence, “your acts are my acts
. . . ”’ [Citations.] But that person’s own acts are also [his] acts
for which [he] is also liable. Moreover, that person’s mental state
is [his] own; [he] is liable for [his] mens rea, not the other
person’s.” (Ibid.)
In conflating these two theories, Cox’s argument misstates
the law. A person can be convicted as a direct aider and abettor
without there being any possibility of his being convicted under a
doctrine of imputed malice. (See Gentile, supra, 10 Cal.5th at
p. 844.) Therefore, a murder conviction attained on a direct
aiding and abetting theory is not necessarily covered by former
section 1170.95.
The instructions that Cox’s jury received on aiding and
abetting, particularly jury instruction number 401 (entitled
“AIDING AND ABETTING, INCHOATE, AND
ACCESSORIAL”), demonstrate that Cox was tried and convicted
for directly aiding and abetting the murder and attempted
murders, not for indirectly aiding and abetting them under a
theory of felony murder or the natural and probable consequences
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doctrine.6 Accordingly, Cox was convicted for his own acts—
which the jury concluded involved his personally discharging a
firearm—and for his own malicious intent when he joined his
codefendants in committing those acts.7 He was not convicted of
murder on any “theory under which malice is imputed to a person
based solely upon that person’s participation in a crime.”
(Former § 1170.95, subd. (a).)
Thus, the trial court correctly found that Cox is ineligible
for relief under former section 1170.95.
B. The jury was not instructed on the natural and
probable consequences doctrine
Second, Cox insists that the jury was instructed on the
natural and probable consequences doctrine, raising the
possibility that he was convicted under that doctrine and is thus
eligible for resentencing per former section 1170.95. This
argument is based solely on jury instruction number 520, which
6 Jury instruction number 401 reads, in pertinent part:
“Someone aids and abets a crime if he or she knows of the
perpetrator’s unlawful purpose and he or she specifically intends
to, and does in fact, aid, facilitate, promote, encourage, or
instigate the perpetrator’s commission of that crime.”
7 To the extent that Cox argues that the jury wrongly found
that he acted with malicious intent, those arguments are
foreclosed by the resolution of his direct appeal in People v.
Weddle, supra, B226368. (See People v. Price (2021) 71
Cal.App.5th 1128, 1152, review granted Feb. 9, 2022, S272572
[former § 1170.95, subd. (d)(2) does not support inference that
Legislature intended petitioners to be able to freely relitigate all
other findings] [cited approvingly by People v. Strong (2022) 13
Cal.5th 698, 714].)
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Cox alleges “has language from the natural and probable
consequence doctrine.”
Cox’s argument misinterprets the jury instruction. The
objected-to portion of jury instruction number 520 reads as
follows: “An act causes death if the death is the direct, natural,
and probable consequence of the act and the death would not
have happened without the act. A natural and probable
consequence is one that a reasonable person would know is likely
to happen if nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all of the
circumstances established by the evidence.”
Despite its use of the words “natural and probable
consequence,” the language of this jury instruction is neither
derived “from” nor in reference to the natural and probable
consequences doctrine. It is taken directly from the standardized
language of CALCRIM jury instruction number 520, which
provides instruction on the law of first or second degree murder—
not on the natural and probable consequences doctrine or any
other theory of imputed malice.
II. The Trial Court Correctly Found That Cox Could
Not Make the Prima Facie Showing Required for
Resentencing Relief
Cox argues that the trial court erroneously determined his
eligibility for resentencing before issuing an order to show cause
setting a date for an evidentiary hearing on the resentencing
petition. Cox characterizes this determination as “premature fact
finding” which “contravened the terms of [former] section
1170.95.”
Cox is incorrect. Former section 1170.95 states that the
trial court “shall hold a hearing to determine whether the
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petitioner has made a prima facie case for relief,” and only
authorizes it to grant an order to show cause “[i]f the petitioner
makes a prima facie showing that the petitioner is entitled to
relief.” (Former § 1170.95, subd. (c).) A petitioner demonstrates
entitlement to relief by showing all of the following: (1) that an
“information . . . was filed against [him] that allowed the
prosecution to proceed under 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, or attempted murder under
the natural and probable consequences doctrine”; (2) that “[t]he
petitioner was convicted of murder [or] attempted murder
. . . following a trial,” and; (3) that “[t]he petitioner could not
presently be convicted of murder or attempted murder” following
the changes made by Sen. Bill 1437. (Former § 1170.95, subd.
(a)(1)-(3).)
While the trial court’s factfinding powers are limited during
this prima facie assessment, the court may rely on factual and
procedural determinations made in prior proceedings to the
extent that they reflect on the petitioner’s eligibility for
resentencing. (People v. Lewis (2021) 11 Cal.5th 952, 971 [“‘[A]
court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary
hearing.’ [Citations.] ‘However, if the record, including the
court’s own documents, “contain[s] facts refuting the allegations
made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.’” [Citation.]”].)
Here, the trial court found that Cox had been neither
prosecuted nor convicted on a theory of imputed malice. The
record of Cox’s trial confirms the trial court’s finding. Cox
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therefore had no basis to assert that he could not presently be
convicted of murder or attempted murder under the new
standards of law adopted by Sen. Bill 1437, and therefore he
could not meet the third element required to make a prima facie
case and progress to an evidentiary hearing under former section
1170.95.
III. Ineffective Assistance of Counsel
Finally, Cox argues that he was given ineffective assistance
of counsel because his appointed counsel filed a Wende brief
instead of “argu[ing] [hi]s case.” He is incorrect. “[T]he
constitutional right to assistance of counsel entitles an indigent
defendant to independent review by the Court of Appeal when
counsel is unable to identify any arguable issue on appeal.
California’s [Wende] procedure for securing this right requires
counsel to file a brief summarizing the proceedings and the facts
with citations to the record . . . .” (People v. Kelly (2006) 40
Cal.4th 106, 119.) The United States Supreme Court approved
the Wende procedure in Smith v. Robbins (2000) 528 U.S. 259.
(People v. Kelly, supra, 40 Cal.4th at p. 118.) Thus, Cox’s counsel
did not render constitutionally ineffective assistance simply by
filing a Wende brief.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
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