People v. Conley CA2/5

Filed 3/15/22 P. v. Conley CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B311522
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. YA046293)
RONALD CONLEY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark E. Windham, Judge. Affirmed.
Lenore De Vita, 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, Senior
Assistant Attorney General, Amanda V. Lopez, Deputy Attorney
General, and Scott A. Taryle, Supervising Deputy Attorney
General, for Plaintiff and Respondent.
A jury found defendant and appellant Ronald Conley
(defendant) guilty of first degree murder and several counts of
premeditated attempted murder for his participation in a gang-
related drive-by shooting. The jury also found true a drive-by
shooting special circumstance allegation (Pen. Code,1 § 190.2,
subd. (a)(21)), and the trial court accordingly sentenced
defendant to life in prison without the possibility of parole.
Many years after his conviction, defendant petitioned for
resentencing under section 1170.95. Without first appointing
counsel for defendant, the trial court denied the petition. The
court found defendant was ineligible for relief as a matter of law
because the jury, in finding the drive-by shooting special
circumstance true, necessarily determined defendant harbored
express malice in committing the murder. Defendant noticed an
appeal from the trial court’s denial of his section 1170.95 petition,
and this court granted the Attorney General’s request to
judicially notice the record from defendant’s earlier direct appeal
of his convictions—including the instructions given to the trial
jury.
All parties agree the failure to appoint counsel for
defendant was error under recent California Supreme Court
authority. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
We hold the error was harmless, however, because defendant is
ineligible relief as a matter of law: his trial jury was not
instructed on principles of felony murder, murder under the
natural and probable consequences doctrine, or any other theory
of imputed malice; and the unavailability of these theories of
1
Undesignated statutory references that follow are to the
Penal Code.
2
guilt makes defendant ineligible for section 1170.95 relief. 2
(§ 1170.95, subd. (a); People v. Daniel (2020) 57 Cal.App.5th 666,
677; People v. Soto (2020) 51 Cal.App.5th 1043, 1055; People v.
Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review granted July 22,
2020, S262835 [“[I]f the jury was not instructed on a natural and
probable consequences or felony-murder theory of liability, the
petitioner could not demonstrate eligibility as a matter of law
because relief is restricted to persons convicted under one of those
two theories”]; see also Lewis, supra, 11 Cal.5th at 974.)
Our disposition of the appeal is accordingly this: the trial
court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
2
Solely in the interest of judicial economy, we find it
unnecessary to discuss the effect of the jury’s true finding on the
drive-by shooting special circumstance allegation.
3