People v. Pugh CA2/1

Filed 3/23/21 P. v. Pugh CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B301904
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA037534)
v.
WILBERT PUGH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, John J. Lonergan, Jr., Judge. Reversed.
Richard D. Miggins, 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 Stacy S. Schwartz, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Petitioner Wilbert Pugh appeals from the summary denial
of his petition for resentencing pursuant to Penal Code1
section 1170.95, which implemented Senate Bill No. 1437,
making the natural and probable consequences doctrine
unavailable to support a murder conviction. In this case, a jury
convicted Pugh of murder. The record of conviction demonstrates
that the trial court instructed the jury on the natural and
probable consequences doctrine, and the jury could have
convicted Pugh based on that doctrine. Pugh therefore
establishes a prima facie case for resentencing on his murder
conviction. Although the Attorney General initially disagreed, in
responding to our request for supplemental briefing, the Attorney
General now concedes that “denial of the petition was premature
and that this matter should be remanded for further
proceedings.”2 Accordingly, we reverse the trial court’s order
summarily denying Pugh’s petition for resentencing. Upon
remand, the trial court shall appoint counsel to represent Pugh
1 Undesignated statutory citations are to the Penal Code.
2 After we took judicial notice of the record in Pugh’s direct
appeal, we requested supplemental briefing on the impact, if any,
of a jury instruction on the natural and probable consequences
theory of murder and of our prior opinion on the petition before
us. The Attorney General agrees that based on those documents,
Pugh satisfied the first step of the two-part prima facie showing
described in People v. Verdugo (2020) 44 Cal.App.5th 320, review
granted March 18, 2020, S260493 (Verdugo), and that we should
remand the case to the trial court to determine whether Pugh has
demonstrated the second step of that prima facie showing. As set
forth below, Pugh has made a prima facie showing of both
Verdugo steps, and the trial court should therefore issue an order
to show cause.
2
and issue an order to show cause pursuant to section 1170.95,
subdivision (c).
BACKGROUND
1. Pugh’s Convictions
In 1998, a jury convicted Pugh of the first degree murder of
Corie Williams. The jury further found that a principal in the
offense was armed with a firearm within the meaning of section
12022, subdivision (a)(1). The jury convicted Pugh of the willful,
deliberate, and premeditated attempted murder of Tyrone Lewis
and found that a principal was armed with a firearm (§ 12022,
subd. (a)(1)). The jury found Pugh guilty of assault with a
firearm and found that a principal was armed with a firearm
(ibid.).
2. Facts Underlying Pugh’s Convictions
In an opinion following Pugh and his codefendants’ appeal
from the judgment of conviction, we described the facts as
follows:3
“The 118 East Coast Crips claim the area around Avalon
Boulevard and Imperial Highway as their territory. Bounty
Hunter Bloods who attend Centennial High School ride the MTA
bus through that territory. There is a long-standing rivalry
between Bloods and Crips gangs in general and between the
118 East Coast Crips and Bounty Hunter Bloods in particular.
3 In evaluating a section 1170.95 petition, we may rely on
the record of conviction including this court’s prior opinions.
(Verdugo, supra, 44 Cal.App.5th at p. 333, review granted.)
3
The 118 East Coast Crips use certain insults to intimidate
Bloods. . . .
“In 1996 and 1997, there had been persistent problems
between the 118 East Coast Crips and Bloods who rode the
number 53 MTA bus that passed by Avalon Boulevard and
Imperial Highway. Specifically, Bloods would display gang signs
while passing through the Crips’ territory. The 118 East Coast
Crips considered this disrespectful. . . .
“[Robert] Johnson [Pugh’s confederate] is a member of the
118 East Coast Crips. He is known as ‘Baby Kiko.’ Defendant
Pugh likewise is a member of this Crips gang. He is known as
‘Li’l Evil.’ Defendant Pugh was the leader of the ‘little ones,’ or
very young gang members such as defendant Johnson.” (People
v. Johnson et al. (June 14, 2001, B129670) [nonpub. opn.]
(Johnson).)
On January 15, 1997 Pugh and Johnson “said it was
disrespectful for Bloods to be coming through the neighborhood.
They were annoyed at Bloods displaying gang signs and yelling
out the bus windows as they passed through the neighborhood.
Defendants Pugh and Johnson discussed getting on the bus the
next time Bloods were aboard, going to the back, beating up
Bloods, then getting off at the next stop. They picked Thursday,
January 16, as a good day for the attack. . . .” (Johnson, supra,
B129670.)
On January 16, 1997, Pugh said, “ ‘Y’all ready?’ ” and
boarded the bus with Johnson and Randall Amado. (Johnson,
supra, B129670.) Amado had a handgun. (Ibid.) Pugh “led the
group across the street” to the bus. (Ibid.) Pugh boarded the bus
and he and his confederates “identified themselves as 118 East
4
Coast Crips, then demeaned Bloods with epithets. At least one of
them shouted, ‘Shoot this . . . bus up[.]’ ” (Ibid.)
Johnson used a pistol to shoot two victims, one of whom
died as a result of a gunshot wound to the neck. (Johnson, supra,
B129670.) After the shooting, the “Crips ran” away and were
heard “laughing about the shooting. They said they heard they
had shot a girl.” (Ibid.)
In a pretrial interview, Johnson told police that he, Pugh,
and others gathered. (Johnson, supra, B129670.) “ ‘Everyone
was talking about getting the Bloods who ride the bus.’ The plan
was to drag some Bloods off of the bus, after which they would
‘torture them and kill them.’ He [Johnson] started to get on the
bus but another gang member pulled him off. Defendant Johnson
walked to the rear of the bus. He pointed a .40 caliber Glock at
the rear window. Everyone was yelling at him to shoot. He put
the gun into the rear window next to the rear door, then fired
four times. . . . He was shooting at two Bloods at the rear of the
bus.” (Ibid.)
In a pretrial written statement, Pugh stated that he “was
waiting at the bus stop at Imperial Highway and Avalon
Boulevard with his girlfriend, Natasha Barnes (Barnes). He
intended to take Barnes to his grandmother’s house . . . .
Defendant Pugh identified himself as an East Coast Crip. He
was dressed in blue as he waited at the bus stop. There just
happened to be eight East Coast Crips at the bus stop that day.
When the bus stopped, a woman got on, followed by Barnes and
defendant Pugh. As he was about to pay his fare, defendant
Johnson went to the back of the bus, where approximately
10 Bounty Hunter Bloods were seated. After an exchange of
words, defendant Johnson got off the bus.” (Johnson, supra,
5
B129670.) Pugh “saw a hand holding a gun come through the
back of the bus as the door closed and the bus began to pull away
from the bus stop . . . . He heard approximately 12 shots.” (Ibid.)
3. Jury Instructions
The trial court instructed the jury on natural and probable
consequences as follows: “One who aids and abets another in the
commission of a crime is not only guilty of those crimes, but is
also guilty of any other crime committed by a principal which is a
natural and probable consequence of the crime originally aided
and abetted.
“In order to find a defendant guilty of the crime[s] of
murder, assault with [a] firearm or shooting into a vehicle . . . ,
you must be satisfied beyond a reasonable doubt that:
“1. The crimes of assault or assault with [a] firearm were
committed;
“2. That the defendant aided and abetted those crimes;
“3. That a co-principal in that crime committed the crimes
of murder and assault with a firearm; and
“4. The crimes of murder and assault with [a] firearm were
a natural and probable consequence of the commission of the
crimes of assault or assault with a firearm.
“You are not required to unanimously agree as to which
originally contemplated crime the defendant aided and abetted,
so long as you are satisfied beyond a reasonable doubt and
unanimously agree that the defendant aided and abetted the
commission of an identified and defined target crime and that the
crimes of murder and assault with [a] firearm [and] shooting into
an occupied [motor] vehicle were a natural and probable
consequence of the commission of that target crime.” (Some
brackets omitted.)
6
The trial court also instructed the jury on the definition of
aiding and abetting and on conspiracy.4 The court defined
malice, premeditation and deliberation. The court instructed the
jury on unpremeditated murder, a killing resulting from an
unlawful act dangerous to life and on second degree felony
murder in pursuance of a conspiracy.5
4. Appeal from the Judgment of Conviction
Following his direct appeal from the judgment of
conviction, this court affirmed the judgment. (Johnson, supra,
B129670.) We rejected Pugh’s argument that there was
insufficient evidence to support his conviction for first degree
murder. (Johnson, supra, B129670.) We explained: “There is
evidence that defendants Pugh and Amado intended to aid,
4 The instruction on conspiracy provided in part: “You
must determine whether the defendants are guilty as a member
of a conspiracy to commit the originally agreed upon crime or
crimes, and, if so, whether the crime alleged . . . [including
murder] was perpetrated by co-conspirators in furtherance of
that conspiracy and was a natural and probable consequence of
the agreed upon criminal objective of that conspiracy.” (Some
brackets omitted.)
5 The instruction on second degree felony murder in
pursuance of a conspiracy provided: “If two or more persons
conspire together to commit a felony inherently dangerous to
human life, namely, shooting into an occupied motor vehicle, and
if the life of another person is taken by one or more of them in
furtherance of the common design, and if that killing is done to
further that common purpose or is an ordinary and probable
result of the pursuit of that purpose, all of the co-conspirators are
equally guilty of murder of the second degree, whether the killing
is intentional, unintentional, or accidental.”
7
promote or encourage an armed attack on Bloods who were riding
the bus. When defendants Johnson and Pugh planned the attack
on January 15, 1997, Johnson was armed. Defendants Amado
and Johnson were armed when they approached the bus, led by
defendant Pugh. Other gang members were armed as well.
Inasmuch as others were able to observe that the defendants
were armed, it may be inferred that each defendant would have
known the others were armed. Knowing at least some gang
members were armed, anyone participating in the assault on the
bus could have anticipated that firearms might be used in the
attack. More tellingly, Crips who boarded the bus, including
defendant Pugh, shouted, ‘Shoot this . . . bus up.’ This is direct
encouragement of assault with a firearm, an offense that
foreseeably may result in murder.” (Ibid.)
This court held that there was “ample evidence from which
it may be inferred that both defendant Pugh and defendant
Amado aided, promoted and encouraged an assault on Bloods
who were riding the bus, an assault they knew could turn deadly.
Accordingly, their convictions are supported by substantial
evidence.” (Johnson, supra, B129670.)
5. Petition for Resentencing
On January 28, 2019, Pugh filed a petition for
resentencing. He alleged that he was convicted of first or second
degree murder and he could no longer be convicted of murder
because of changes made to sections 188 and 189 effective
January 1, 2019. Pugh requested counsel.
6. Order Denying Petition
The trial court did not appoint counsel for Pugh. On
February 1, 2019, the trial court summarily denied the petition
8
because Pugh aided and abetted the killing and was a major
participant in the crime who acted with reckless indifference
to human life. The court relied on Amado v. Gonzalez
(9th Cir. 2014) 758 F.3d 1119, a Ninth Circuit case involving the
codefendant Randall Amado. That opinion described the facts of
the case, based on the joint trial of Amado, Pugh, and Johnson.
(Ibid.) Amado described Pugh and Amado as “alleged aiders and
abettors.” (Id. at p. 1126.) The Ninth Circuit did not describe
what crime Pugh or Amado were alleged to have aided and
abetted or recognize that the superior court instructed the jury on
the natural and probable consequences doctrine.
7. Second petition for resentencing
On June 24, 2019, Pugh filed a second petition for
resentencing alleging the same as in his first. Pugh requested
the trial court appoint counsel for him. On July 3, 2019, the trial
court summarily denied it for the same reasons in its earlier
order.
8. Third petition for resentencing
On August 15, 2019, Pugh filed another petition for
resentencing. He made the same allegations as in his prior
petitions and attached a declaration. In his declaration, Pugh
cited to portions of the reporter’s transcript from his direct appeal
and to pages from his opening brief on appeal.
The trial court summarily denied the petition because it
was duplicative of the prior petitions. Pugh appealed from the
order denying his third petition.6
6 In the interest of justice, we grant Pugh’s unopposed
motion to constructively file a notice of appeal from the trial
9
DISCUSSION
Prior to the enactment of Senate Bill No. 1437, a defendant
who aided and abetted a crime that resulted in a victim’s death
could be convicted under the natural and probable consequences
theory even if the defendant did not act with malice. (People v.
Offley (2020) 48 Cal.App.5th 588, 595 (Offley).) “The natural and
probable consequences doctrine provides that ‘ “[a] person who
knowingly aids and abets criminal conduct is guilty of not only
the intended crime [target offense] but also of any other crime the
perpetrator actually commits [nontarget offense] that is a natural
and probable consequence of the intended crime. . . .” [Citation.]’
[Citation.] The doctrine ‘ “imposes vicarious liability for any
offense committed by the direct perpetrator that is a natural and
probable consequence of the target offense. . . .” [Citation.]’
[Citation.]” (People v. Duke (2020) 55 Cal.App.5th 113, 120,
review granted Jan. 13, 2021, S265309.)
The Legislature enacted Senate Bill No. 1437 “after
determining that there was further ‘need for statutory changes to
more equitably sentence offenders in accordance with their
involvement in homicides.’ ” (People v. Gentile (2020) 10 Cal.5th
830, 838–839.) Senate Bill No. 1437 changed the law on murder
and added section 1170.95, which allows defendants convicted of
murder based on the natural and probable consequences doctrine
to petition for resentencing. Senate Bill No. 1437 did not alter
the viability of a murder conviction based on direct aiding and
court’s February 1, 2019 order. (In re Benoit (1973) 10 Cal.3d 72,
84, 86 [“constructive filing . . . embodies nothing more than a
basis for judicial acceptance of an excuse for the appellant’s delay
in order to do justice”].)
10
abetting liability. “One who directly aids and abets another who
commits murder is thus liable for murder under the new law just
as he or she was liable under the old law.” (Offley, supra,
48 Cal.App.5th at pp. 595–596.)
Under section 1170.95, subdivision (c), if the petitioner
makes a prima facie showing that he or she is eligible for and
entitled to relief under the statute, then the trial court “shall
issue an order to show cause.” (§ 1170.95, subds. (b) & (c);
Verdugo, supra, 44 Cal.App.5th at pp. 328–329, review granted.)
A prima facie showing of eligibility requires a legal determination
whether the petitioner is statutorily eligible for relief. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 898 (Tarkington), review
granted Aug. 12, 2020, S263219.) A prima facie case of
entitlement requires the court to determine whether the
petitioner would be entitled to relief if the petitioner could prove
the factual allegations in the petition. (Ibid.) “ ‘A prima facie
showing is one that is sufficient to support the position of the
party in question.’ ” (People v. Lewis (2020) 43 Cal.App.5th 1128,
1137 (Lewis), review granted Mar. 18, 2020, S260598.)
We recently explained the requirements for a petitioner to
establish a prima facie case for resentencing under
section 1170.95. (People v. Nguyen (2020) 53 Cal.App.5th 1154(Nguyen).) “Under section 1170.95, subdivision (a), ‘A person
convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court
that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply: [¶] (1) A
complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
11
of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of
first degree or second degree murder following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder. [¶] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January
1, 2019.’ ” (Nguyen, at p. 1164.)
“In determining whether a petitioner has made a prima
facie showing that he or she is entitled to relief, the ‘trial court
should not evaluate the credibility of the petition’s assertions, but
it need not credit factual assertions that are untrue as a matter
of law—for example, a petitioner’s assertion that a particular
conviction is eligible for relief where the crime is not listed in
subdivision (a) of section 1170.95 as eligible for resentencing.
Just as in habeas corpus, if the record “contain[s] facts refuting
the allegations made in the petition . . . the court is justified in
making a credibility determination adverse to the petitioner.”
[Citation.] However, this authority to make determinations
without conducting an evidentiary hearing pursuant to section
1170.95, [subdivision] (d) is limited to readily ascertainable facts
from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of
discretion . . . .’ [Citation.]” (Nguyen, supra, 53 Cal.App.5th at
pp. 1165–1166.) We explained that a petitioner fails to establish
a prima facie showing if the petition is untrue as a matter of law.
(Ibid.)
We reached the same conclusion in People v. Swanson
(2020) 57 Cal.App.5th 604, 612, review granted February 17,
2021, S266262, stating that the “contents of the record of
12
conviction defeat a prima facie showing when the record shows as
a matter of law that the petitioner is not eligible for relief.” (See
also People v. Duchine (2021) 60 Cal.App.5th 798, 815 [“absent a
record of conviction that conclusively establishes that the
petitioner engaged in the requisite acts and had the requisite
intent,” the petitioner has established a prima facie case];
People v. Drayton (2020) 47 Cal.App.5th 965, 982 (Drayton)
[reversing the trial court’s order finding no prima facie case
because the trial court engaged in factfinding that was not
supported as a matter of law by the record of conviction]; but see
People v. Garcia (2020) 57 Cal.App.5th 100, 116, review granted
Feb. 10, 2021, S265692 [“The trial court should not accept the
petitioner’s assertions as true and issue an order to show cause if
substantial evidence in the record supports a murder conviction
under current law.”].)
Turning to this case, Pugh has established a prima facie
case of eligibility and a prima facie case of entitlement to relief.
Pugh satisfied the first prima facie stage because his petition
shows that he is statutorily eligible for relief as a matter of law.
(Tarkington, supra, 49 Cal.App.5th at p. 897, review granted.)
He was convicted of murder based on a charging document that
allowed the prosecution to proceed under the natural and
probable consequences theory. (See ibid.)
At the second prima facie stage, “the court must take
petitioner’s factual allegations as true and make a preliminary
assessment regarding whether he or she would be entitled to
relief if the factual allegations were proved.” (Tarkington, supra,
49 Cal.App.5th at p. 898.) Here, Pugh’s petition asserted facts,
which if accepted as true, established a prima facie case for
13
relief.7 Specifically, Pugh alleged that he was convicted of
murder based on the natural and probable consequences doctrine
and could not now be convicted of murder because of changes to
sections 188 and 189. The record shows that the trial court
instructed the jury on natural and probable consequences and we
cannot rule out the possibility that the jury relied on the natural
and probable consequences doctrine in convicting Pugh. Because
Pugh established a prima facie case for eligibility and for
entitlement, the trial court was required to issue an order to
show cause. (Drayton, supra, 47 Cal.App.5th at p. 982; § 1170.95,
subd. (c).) Upon remand, the trial court should appoint counsel to
represent Pugh. (Lewis, supra, 43 Cal.App.5th at p. 1140, review
granted [because petitioner made a prima facie case that he falls
within the provisions of the statute, he is entitled to counsel].)
7 Although the Attorney General argues that the trial
court should determine whether Pugh made a showing he is
entitled to relief, the Attorney General offers no legal theory
under which Pugh fails to make that showing.
14
DISPOSITION
The order denying Pugh’s petition for resentencing is
reversed. Upon remand, the trial court shall appoint counsel for
Pugh and shall issue an order to show cause pursuant to
Penal Code section 1170.95, subdivision (c).
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
15