People v. Maloy CA2/3

Filed 1/8/21 P. v. Maloy CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B299938
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA057246
v.
JAMES WARREN MALOY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, David V. Herriford, Judge. Affirmed.
Thomas T. Ono, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Charles S. Lee and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
James Warren Maloy appeals from the superior court’s
order denying his petition under Penal Code section 1170.95.1
That statute allows certain defendants convicted of murder under
a natural and probable consequences theory to petition the court
to vacate their convictions and for resentencing. Here, the court
properly determined Maloy was not tried for or convicted of
murder under the natural and probable consequences doctrine
and, accordingly, he is not eligible for resentencing. We affirm.
FACTS AND PROCEDURAL BACKGROUND
In 1992, the People charged Maloy with the murder of
Deena Ford. As the facts of Maloy’s crime are irrelevant to
our analysis, we summarize them only briefly.2
On the night of March 13, 1992, sisters Deena and Katrina
Ford were going to Deena’s car to get some shoes. Maloy
approached from across the street. Before leaving her apartment,
Katrina had received a telephone call warning her East Coast
Crip gang members were outside and planned to rob her. As
Katrina and Deena were discussing this warning outside by
Deena’s car, a man named James Briggs appeared and asked
Maloy what was happening. Maloy said, “Cuz, let’s try knocking
these bitches out.” Maloy, Briggs, and two other men began
to chase the women. Deena had a steak knife in her hand and
the women tried to get into Deena’s car but the men stopped
them. Maloy said, “Cuz, get the gat.” Briggs pulled a small
handgun from his sock, got on top of Deena’s car, and shot her
in the back as she ran away. (Maloy I.)
1 References to statutes are to the Penal Code.
2 We take these facts from our opinion in Maloy’s direct
appeal. (People v. Maloy et al. (Jan. 19, 1996, B080237)
[nonpub. opn.] (Maloy I).) (See Evid. Code, § 452, subd. (d).)
2
In an amended information filed in April 1993, the People
added Briggs as a codefendant. The People alleged Briggs
personally used a handgun in the commission of the crime,
and that a principal was armed with a handgun in the crime’s
commission. In 1993, a jury convicted Maloy of first degree
murder and found true the allegation that a principal was armed
with a firearm. The trial court sentenced Maloy to 26 years
to life in the state prison (an indeterminate term of 25 to life plus
one year for the “principal armed” enhancement). In January
1996, this court affirmed Maloy’s conviction as modified to
correct his credits. (Maloy I.)
In December 2009, Maloy filed a petition for a writ of
habeas corpus. Maloy raised a host of issues, from instructional
error to due process violations arising from his joint trial with
Briggs to “juror bias” to ineffective assistance of counsel. Maloy
attached a number of exhibits to his petition, including portions
of the trial transcript of some of the court’s instructions to the
jury. In April 2010, the trial court denied the writ petition.
After Senate Bill No. 1437 took effect, Maloy filed on
January 9, 2019 a petition for resentencing under section
1170.95. Using a downloadable form, Maloy checked boxes 2a,
3 and its subparagraphs, 4, 5, and 6. Box 2a states, “At trial,
I was convicted of 1st or 2nd degree murder pursuant to the
felony murder rule or the natural and probable consequences
doctrine.”
Simultaneously with his petition, Maloy filed on
January 10, 2019, another petition for a writ of habeas corpus.
Under “Grounds for Relief,” Maloy wrote, “Petitioner contends
that he is currently serving a sentence that entitles him to be
resentenced under SB 1437.” Under “Supporting facts,” Maloy
wrote, “Petitioner was convicted of first degree murder in 1993
as an aider and abett[o]r. Petitioner was identified as not being
3
the killer, who neither intended to kill nor was found to have
any culpable mental state. Please see Exhibit (A) pg. 8.” A page
entitled “EXHIBIT A” follows the petition but no exhibit is
attached.
On January 23, 2019, the superior court set a “review” date
on the resentencing petition for March 11. On March 5, 2019,
the district attorney filed a request for more time to file a
response to the petition. The court granted the request and
extended the time for a response to April 30. At some point,
the court appointed the public defender to represent Maloy, as
a deputy public defender appeared on his behalf on March 11.
On April 29, 2019, the district attorney filed an opposition
to the petition. The prosecution contended Maloy was ineligible
for resentencing because he was convicted of first degree murder
as a direct aider and abettor, and his conduct in “order[ing] his
co-defendant to execute the victim as she was running away”
showed his “intent to kill the victim.” The prosecution noted,
“Although a natural and probable consequence jury instruction
may have been given to the jury, a murder conviction based on
that legal theory would have resulted in a conviction for second
degree murder based on an implied malice theory. However,
that result did not occur in this case, meaning that the jury’s
verdict was not based on any natural and probable consequence
jury instructions.”3
3 The district attorney also argued section 1170.95 is
unconstitutional. The superior court did not reach that issue.
Nor do the parties raise it on appeal. Numerous courts have
held section 1170.95 to be constitutional. (People v. Lamoureux
(2019) 42 Cal.App.5th 241, 250-251; People v. Lopez (2020)
51 Cal.App.5th 589, 594.)
4
On April 30, 2019, the court granted defense counsel’s
request for more time to file his reply. On June 14, the public
defender filed a reply to the district attorney’s opposition.
Counsel attached two jury instructions given at Maloy’s trial:
CALJIC Nos. 8.11 and 8.31. CALJIC No. 8.11 defined “malice,”
and explained it may be express or implied. The instruction
states malice is implied when the killing resulted from an
intentional act, “[t]he natural consequences of the act are
dangerous to human life,” and “[t]he act was deliberately
performed with knowledge of the danger to, and with conscious
disregard for, human life.” CALJIC No. 8.31 repeated these
three elements in defining second degree murder.
Confusing felony murder with murder based on the natural
and probable consequences doctrine, defense counsel argued
“[t]here was no finding by the jury that James Maloy was a major
participant in the attempted robbery in this case.”4
The parties presented oral argument on July 10, 2019.
The court observed it was clear Maloy was “not the actual
shooter.” The district attorney said the jury instructions Maloy
cited—CALJIC Nos. 8.11 and 8.31—defined implied malice,
and neither “deal[t] with the natural and probable consequence
theory.” The prosecutor continued, “I did not see anything in
the jury instructions that would be analogous to a natural and
probable consequence instruction either for a target offense or
nontarget charge.” The court stated, “It looks like the theory
the People advanced was he was an aider and abettor and shared
his intent to kill; and, in fact, encouraged the other person to
do the shooting.” In response to the prosecutor’s argument that
4 Neither Maloy nor Briggs was charged with attempted
robbery. Nor did the information or amended information allege
any special circumstances.
5
“the fact that [Maloy] was convicted of a first as [opposed] to a
second makes it legally impossible for the jury to have relied on
that theory to come to a first,” the court said, “that’s how I was
looking at it,” adding, “There’s no felony murder involved in this.”
Citing CALJIC No. 8.11, defense counsel argued “the jury
was effectively instructed on natural and the probable [sic]
consequences theory.” The court again explained that the
instruction had to do with implied malice. Defense counsel said
Maloy’s family had delivered “the entirety of the appellate file”
to the public defender’s office and he had read it, including the
instructions given to the jury. The prosecutor asked defense
counsel, “Did it have any instruction that’s analogous to what
is now [CALCRIM Nos.] 402 and 403 for the natural and probable
consequences?” Counsel answered, “It did not.”
The court offered defense counsel an opportunity for
additional briefing, but counsel declined. The court then ruled
Maloy was ineligible for resentencing and denied his petition.
DISCUSSION
To be eligible for resentencing under section 1170.95,
Maloy must have been tried and convicted under either (1) the
felony-murder rule or (2) the natural and probable consequences
doctrine. (§ 1170.95, subd. (a); People v. Verdugo (2020) 44
Cal.App.5th 320, 323, review granted Mar. 18, 2020, S260493;
People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-1167.) He
was not tried or convicted under either of these theories.5
As he did in the superior court, Maloy continues to confuse
the reference to “[t]he natural consequences of [an intentional]
5 While defense counsel in the superior court referred
to attempted robbery and argued Maloy was not a “major
participant,” Maloy—correctly—does not contend on appeal
that he was tried on a felony-murder theory.
6
act [being] dangerous to human life” in the definition of implied
malice with the natural and probable consequences doctrine
within the meaning of section 1170.95. Defense counsel conceded
at the hearing that Maloy’s jury was not given any instruction
equivalent to CALCRIM Nos. 402 and 403, instructing the jury
on any target crime on which murder based on a natural and
probable consequences theory could be predicated.6
Our colleagues in the Sixth District have explained
the difference between “natural consequences” as used in the
definition of implied malice, and the natural and probable
consequences doctrine. In People v. Soto (2020) 51 Cal.App.5th
1043, review granted Sept. 23, 2020, S263939, a jury had
convicted Soto of second degree murder in 1996. In 2019, Soto
petitioned for resentencing under section 1170.95. The trial court
summarily denied the petition and the appellate court affirmed.
The court concluded Soto had not made a prima facie showing
that he was entitled to relief “because the jury instructions given
at his trial conclusively demonstrate as a matter of law that
he was not convicted of murder under a natural and probable
consequences theory . . . .” (Soto, at p. 1059.)
Soto’s jury was instructed with CALJIC Nos. 8.11 and 8.31,
just as Maloy’s jury was. (Soto, supra, 51 Cal.App.5th at
p. 1049.) But “the trial court did not instruct the jury that
Soto could be liable for [first or second degree murder] as the
natural and probable consequence of the commission of another
crime . . . .” (Id. at p. 1050.) The Court of Appeal stated the
trial court, in ruling on Soto’s resentencing petition, “could rely
6 As we noted, Maloy attached to his 2009 writ petition the
part of his trial transcript in which the court instructed the jury
on the murder charge. The transcript does not reflect any
instruction on the natural and probable consequences doctrine.
7
on the jury instructions, which are part of the record of
conviction, in assessing the prima facie showings under section
1170.95(c).” The court concluded the jury instructions “on their
face and as a matter of law” demonstrated Soto “was not and
could not have been convicted of second degree murder under
the natural and probable consequences doctrine,” “because the
jurors were not provided any instruction on which they could
have found Soto guilty of murder under that doctrine. Rather,
under the instructions, the jury necessarily found Soto culpable
for murder based on his own actions and mental state as a direct
aider and abettor of murder.” (Id. at p. 1055.) The result here
is precisely the same for precisely those reasons.
Soto’s argument—like Maloy’s here—“rest[ed] on a
similarity in the language in the jury instructions related to
implied malice to those explaining the natural and probable
consequence doctrine.” (Soto, supra, 51 Cal.App.5th at p. 1056.)
The Soto court explained that, even though CALJIC Nos. 8.11
and 8.31
“include similar language regarding a ‘natural
consequence,’ they are distinctly different
concepts. Implied malice is a mental state for
the commission of the crime of second degree
murder, either by the principal or as an aider
and abettor (as was the case here for Soto) to
murder. This distinction between direct aiding
and abetting liability and natural and probable
consequences doctrine is critical because
potential relief under section 1170.95 extends
only to those convicted of murder by operation
of the natural and probable consequence
doctrine or of felony murder. . . . Senate Bill
No. 1437 changed the circumstances under
8
which a person could be convicted of murder
without a showing of malice, but it did not
exclude from liability persons convicted
of murder for acting with implied malice.
[Citation.]” (Soto, at pp. 1056-1057.)
The Soto court continued:
“For implied malice murder, [the requisite]
intent is that the perpetrator ‘ “knows that his
conduct endangers the life of another and . . .
acts with conscious disregard for life.” ’
[Citation.] The ‘physical component’ required
for implied malice murder ‘is satisfied by
the performance of “an act, the natural
consequences of which are dangerous to life.” ’
[Citation.] [¶] The natural and probable
consequence doctrine, by contrast, is a theory
of liability by which an aider and abettor
who intends to aid a less serious crime can
be convicted of a greater crime. This doctrine
comes into play when ‘an accomplice assists or
encourages a confederate to commit one crime,
and the confederate commits another, more
serious crime (the nontarget offense).’
[Citation.] Applying the natural and probable
consequences doctrine, ‘a defendant may be
held criminally responsible as an accomplice
not only for the crime he or she intended to aid
and abet (the target crime), but also for any
other crime that is the “natural and probable
consequence” of the target crime.’ [Citation.]
Unlike aiding and abetting implied malice
murder, which requires the aider and abettor
9
to (at least) share the mental state of the actual
perpetrator of implied malice murder, ‘ “aider
and abettor culpability under the natural and
probable consequences doctrine is not premised
upon the intention of the aider and abettor to
commit the nontarget offense [e.g., murder]
because the nontarget offense was not intended
at all.” ’ [Citation.]” (Soto, supra, 51
Cal.App.5th at p. 1058.)
In short, the superior court did not err in denying Maloy’s
petition for resentencing. (See People v. Tarkington (2020) 49
Cal.App.5th 892, 899, review granted Aug. 12, 2020, S263219
[petitioner ineligible as a matter of law where jury not instructed
on natural and probable consequences doctrine or felony-murder
rule]; People v. Edwards (2020) 48 Cal.App.5th 666, 674, review
granted July 8, 2020, S262481 [although jury instructions
included phrase “natural and probable consequences,” petitioner
ineligible because record of conviction showed he was not
convicted of murder under the natural and probable
consequences doctrine directed at accomplice liability]; People v.
Nguyen, supra, 53 Cal.App.5th at p. 1157 [petitioner did not
make requisite prima facie showing that he was convicted of
murder under a natural and probable consequences theory].)
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DISPOSITION
We affirm the superior court’s order denying James
Warren Maloy’s petition to vacate his murder conviction and
for resentencing under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
11