People v. Collins CA2/1

Filed 5/1/23 P. v. Collins CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B318161
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA450794)
v.
RONALD COLLINS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Eleanor J. Hunter, Judge. Affirmed.
Deborah L. Hawkins, 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, Idan Ivri and Theresa A. Patterson, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Ronald Collins appeals from
the trial court’s summary denial of a Penal Code section 1172.6 1
petition regarding his conviction for directly aiding and abetting
second degree murder, a crime the jury was instructed requires
Collins to have acted with malice aforethought. He argues that,
given the substance of the jury’s verdict, the jury must have
imputed the requisite malice to him based solely on his driving
the car out of which his codefendant shot and killed the victim,
a theory that renders him prima facie eligible for section 1172.6
resentencing. We disagree and affirm.
FACTS AND PROCEEDINGS BELOW
A. Trial and Conviction
A 2017 information charged Collins, John Charles Patrick,
James Hill, and Bernard Kajuan Smith with first degree murder
in connection with the drive-by shooting of Demond Jones. At
trial, the People prosecuted Collins as an aider and abettor on
the theory that Collins intended to and did assist Patrick in
committing murder by driving the car out of which Patrick shot
Jones. Evidence presented at trial included the following:
Patrick and Collins were half brothers and members
of gangs that shared a common enemy, the Rollin’ 30’s
1 Subsequent unspecified statutory references are to the
Penal Code.
Collins filed his petition under the predecessor to
section 1172.6, which was codified as section 1170.95. Effective
June 30, 2022, the Legislature renumbered section 1170.95 as
section 1172.6 (Stats. 2022, ch. 58, § 10) without changing the
statute’s content. We hereafter cite to section 1172.6 for ease of
reference.
2
Neighborhood Crips (Neighborhood Crips). On the evening of
October 4, 2016, Patrick, Collins, Smith, and Hill were drinking
at the house of a friend, Kenyetta Loyd. Loyd allowed Patrick to
drive a rented burgundy sports utility vehicle (SUV) to the store
to buy alcohol. Loyd did not hear any discussion about gangs,
or enemies, or going on a mission, nor did she see any of the
men with a gun. She did, however, observe Patrick and Hill
throwing gang hand signs during the evening. Around 2:00 a.m.,
Loyd told Patrick he could use the SUV to drive the other men
home. Loyd gave Patrick the keys to the SUV, but she did not
see the men get into the car. (People v. Patrick et al. (Oct. 5,
2020, B293996) [nonpub. opn.] (Patrick et al.).)
At 2:22 a.m. a person called 911 and reported that someone
had pulled a gun on him and attacked him in an area within
territory claimed by the Neighborhood Crips gang. Police officers
responded to the scene and heard four to seven gunshots. One
officer saw a burgundy SUV driving very slowly. After the SUV
made a turn, the officer saw a man lying on the ground outside
a restaurant. The man, Demond Jones, had been shot four
times and died at the scene. Officers pursued the SUV, which
eventually crashed, and one officer witnessed three people
running from the vehicle. Police found a .38 caliber revolver
on the ground outside the passenger side of the SUV with five
discharged cartridge casings inside it. During trial, a criminalist
opined that the revolver fired the bullets that were recovered
from the victim’s body. Patrick’s fingerprints were found on
the outside front driver’s side door and on the revolver. Collins’s
fingerprint was found on the gas tank door/cover. (Patrick et al.,
supra, B293996.)
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A video surveillance recording of the incident showed
an arm reaching out from the front passenger window of the
SUV and firing one shot. The shooter wore a white tank top.
Photographs taken near the time of Patrick’s arrest show him
wearing a white tank top. (Patrick et al., supra, B293996.)
The day after the shooting, Loyd visited Smith in jail.
Smith initially told Loyd he was asleep during the incident,
but when Loyd pressed him, he told her “they” shot someone.
Smith later told Loyd that “Little” shot someone, which Loyd
understood to be a reference to Patrick. Smith said Patrick
was in the front passenger seat, Collins was driving, and he
and Hill were in the back seat of the SUV. (Patrick et al., supra,
B293996.)
The prosecution’s theory at trial was that Jones died as a
result of a drive-by shooting in rival gang territory, that Patrick
was the shooter and Collins was the driver in the shooting, and
that by driving the car while Patrick shot Jones, Collins intended
to and did aid and abet murder. The court instructed the jury
as to, inter alia, aiding and abetting, implied malice and express
malice murder, and second and first degree murder. The aiding
and abetting instruction the court read to the jury (CALCRIM
No. 401) required, inter alia, that Collins “specifically intend[ed]
to, and [did] in fact, aid, facilitate, promote, encourage, or
instigate [Patrick’s] commission of [murder].”
The jury convicted Patrick of first degree murder (§ 187,
subd. (a)) and found true allegations that Patrick personally used
and intentionally discharged a firearm causing death. The jury
convicted Collins of second degree murder (§ 187, subd. (a)).
(Patrick et al., supra, B293996.)
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B. Collins’s Section 1172.6 Petition for
Resentencing
Collins filed a petition for resentencing under
section 1172.6, a statute initially enacted as part of Senate Bill
No. 1437. Senate Bill No. 1437 “amend[ed] 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(f), p. 6674.) It accomplished this
by amending section 188, subdivision (a)(3), to require that all
principals to murder must act with express or implied malice to
be convicted of that crime, with the exception of felony murder
under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2,
p. 6675.) For a felony murder conviction under section 189,
subdivision (e), Senate Bill No. 1437 required that the defendant
be the actual killer, an aider and abettor to the murder who acted
with intent to kill, or a major participant in the underlying felony
who acted with reckless indifference to human life. (Stats. 2018,
ch. 1015, § 3, p. 6675.)
Section 1172.6 established a procedure for defendants
already convicted of murder under the pre-Senate Bill No. 1437
version of the law to seek resentencing if they could not be
convicted of that crime given the above amendments to
sections 188 and 189. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.)
Senate Bill No. 775 amended section 1172.6, effective
January 1, 2022. (Sen. Bill No. 775 (2020–2021 Reg. Sess.);
Stats. 2021, ch. 551, § 2, pp. 6971–6972.) Among other changes,
Senate Bill No. 775 added as an additional basis for relief under
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section 1172.6 that the petitioner was convicted of murder based
on any “other theory under which malice is imputed to a person
based solely on that person’s participation in a crime.” (§ 1172.6,
subd. (a)(1); People v. Lewis (2021) 11 Cal.5th 952, 957, 959
(Lewis).)
A court receiving such a section 1172.6 petition must
conduct an analysis as to whether the petitioner has made a
prima facie showing of eligibility for such relief. (§ 1172.6,
subd. (c); Lewis, supra, 11 Cal.5th at p. 960.) A petitioner
convicted of murder makes such a prima facie showing when he
alleges that he was convicted based on a theory of “felony murder
or 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” (§ 1172.6,
subd. (a)(1); see id., subd. (a)(2)), and that he “could not presently
be convicted of murder . . . because of changes to Section 188
or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(3);
see Lewis, supra, at pp. 959–960.) In assessing eligibility at
the prima facie stage, the court “ ‘ “takes petitioner’s factual
allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief
if his or her factual allegations were proved. If so, the court
must issue an order to show cause.” ’ ” (Lewis, supra, at p. 971.)
Here, the trial court determined Collins had not alleged
prima facie eligibility under section 1172.6, because he had been
convicted on a direct aider and abettor theory, which the court
concluded was not a theory listed in section 1172.6. The court
denied the petition and did not issue an order to show cause.
Collins timely appealed.
6
DISCUSSION
When the court denies a section 1172.6 petition based on
failure to make a prima facie case for relief, we review the court’s
application of the law to the facts de novo. (See People v. Drayton
(2020) 47 Cal.App.5th 965, 981, overruled in part on another
ground in Lewis, supra, 11 Cal.5th at pp. 962–970.)
Although the prosecution may rely on acts of a perpetrator
who causes a victim’s death in order to convict an aider and
abettor of murdering that victim, the prosecution must prove
the aider and abettor personally held a specific mental state
as well. (People v. McCoy (2001) 25 Cal.4th 1111, 1122 (McCoy)
[“when a person, with the mental state necessary for an aider
and abettor, helps or induces another to kill, that person’s guilt
is determined by the combined acts of all the participants as
well as that person’s own mens rea”]; see also id. at p. 1117
[“the mental state required of an aider and abettor [is] ‘different
from the mental state necessary for conviction as the actual
perpetrator’ ”].) Namely, as the jury was instructed here, the
prosecution must prove that the aider and abettor defendant
“intended to aid and abet the perpetrator in committing the
[murder] [¶] . . . [¶] . . . [and that he] kn[ew] . . . the perpetrator’s
unlawful purpose and . . . specifically intend[ed] to, and [did]
in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime.” (CALCRIM No. 401;
see McCoy, supra, at p. 1118 [“ ‘[t]o prove that a defendant is
an accomplice . . . the prosecution must show that the defendant
acted “with knowledge of the criminal purpose of the perpetrator
and with an intent or purpose either of committing, or of
encouraging or facilitating commission of, the offense” ’ ”].)
“[N]otwithstanding Senate Bill No. 1437 . . . [and the further
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amendments of Senate Bill No. 775], an aider and abettor who
does not expressly intend to aid a killing can still be convicted of
second degree [implied malice] murder if the person knows that
his or her conduct endangers the life of another and acts with
conscious disregard for life.” (People v. Gentile (2020) 10 Cal.5th
830, 850, superseded by statute on other grounds as stated in
People v. Glukhoy (2022) 77 Cal.App.5th 576, 584 (Glukhoy); see
Glukhoy, supra, at p. 588 [“aiding and abetting implied malice
murder is a valid theory of liability for second degree murder”].)
Consistent with this, the jury was instructed that, in order to find
Collins guilty of aiding and abetting second degree implied malice
murder (as it ultimately did), the jury needed to first conclude he
acted with the reckless disregard for human life when he assisted
Patrick by driving the car during the shooting.2 (See, e.g.,
2 Specifically, the court instructed the jury on aiding and
abetting using CALCRIM No. 401, and on implied malice using
CALCRIM No. 520. (See CALCRIM No. 401 [aiding abetting
requires, inter alia, that “[b]efore or during the commission of
the crime, the defendant intended to aid and abet the perpetrator
in committing [the underlying] crime” and that the defendant
“knows . . . 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”]; CALCRIM No. 520 [implied malice requires, inter alia,
conscious disregard for human life].) Two Court of Appeal
decisions have questioned whether these or similar instructions
sufficiently explain that an aider and abettor of implied malice
murder must himself act with conscious disregard for human life.
(See People v. Powell (2021) 63 Cal.App.5th 689, 714 (Powell);
People v. Langi (2022) 73 Cal.App.5th 972, 982, 984.) Collins
stresses, however, that he is not challenging the instruction
provided. In any event, we see no infirmity in CALCRIM No. 401
8
Glukhoy, supra, 77 Cal.App.5th at pp. 587–588 [aiding and
abetting implied malice murder requires reckless disregard for
human life]; McCoy, supra, 25 Cal.4th at p. 1123 [“one cannot
knowingly and intentionally help another commit an unlawful
killing without acting with malice”].)
Collins does not challenge the sufficiency of the jury
instructions. (See ante, fn. 3.) Rather, he argues that, under
these instructions, the jury’s decision to convict Collins of aiding
and abetting second degree murder, but to convict the actual
shooter of murder in the first degree, indicates the jury must
have imputed the requisite disregard to Collins in a manner no
longer permissible under the law—mere participation in a crime.
Collins’s argument is as follows: Collins assisted Patrick by
driving the car, but the prosecution did not attempt to prove,
nor did the evidence establish, “that [Collins] drove that car
recklessly or dangerously or in a way that risked human life.”
Thus, the only way Collins could have acted with reckless
disregard by driving is if Collins anticipated Patrick would
shoot from the car while Collins was driving. But according
to Collins, “[b]ecause the jury did not find [him] guilty of
first[ ]degree murder, the jury necessarily found that [Collins]
did not anticipate the shooting.” (Italics added.) Therefore,
as applied to implied malice murder, because it expressly
requires the defendant to have shared the unlawful criminal
objective of the perpetrator and to have knowingly and
intentionally assisted the perpetrator in committing murder
(see CALCRIM No. 401), a crime that requires malice. (See
§ 187, subd. (a) [defining murder as requiring express or
implied malice]; McCoy, supra, 25 Cal.4th at p. 1123 [“one
cannot knowingly and intentionally help another commit an
unlawful killing without acting with malice”].)
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Collins argues, the only way the jury could have found he acted
with the requisite malice was by imputing such a mental state to
him based only on his participation in the crime and/or Patrick’s
commission of the crime, currently impermissible theories that
render him prima facie eligible for relief under section 1172.6.
Collins’s argument incorrectly assumes that, because the
jury did not find Collins guilty of murder in the first degree (as it
found Patrick), the jury necessarily must have concluded Collins
did not anticipate Patrick would shoot from the car while Collins
was driving. That is incorrect. Whether Collins aided and
abetted murder in the first rather than the second degree does
not depend on whether Collins anticipated Patrick would shoot
out of the car while Collins was driving. Rather, as the court
instructed the jury, the difference between first and second
degree murder depends on whether “[(1)] the murder was willful,
deliberate and premeditated,” which requires a premeditated
intent to kill, or “(2) the murder was committed by means
of discharging a firearm from a vehicle,” which requires
“intentionally sho[oting] at a person who was outside the vehicle;
[¶] [and] [¶] . . . intend[ing] to kill that person.” (Italics added.)
Thus, the jury’s conclusion that the prosecution had not
established Collins’s murder conviction should be in the first
degree indicates the jury found Collins did not know Patrick
planned to kill by shooting out of the car and that Collins did not
know Patrick would shoot out of the car at people with an intent
to kill them. Neither finding is inconsistent with Collins knowing
that Patrick intended to shoot out of the car.
Accordingly, the substance of the verdict does not, as
Collins argues, reflect that the jury imputed malice to Collins on
some basis no longer permissible under current law, as opposed
10
to finding, based on the circumstantial evidence reflected
in the record of conviction, that Collins “personally harbored”
(Powell, supra, 63 Cal.App.5th at p. 713) reckless disregard
for human life and thus the requisite intent for directly aiding
and abetting implied malice murder.3 Nor does Collins identify
any other reason why the jury’s verdict should be interpreted as
being based on improperly imputed malice. Therefore, the court
correctly denied Collins’s section 1172.6 petition.
3 The sufficiency of the evidence to support the conscious
disregard for human life, or any other element of the crime
charged, is not the proper basis for a section 1172.6 petition,
and Collins raises no such argument. (See People v. Farfan
(2021) 71 Cal.App.5th 942, 947 [such a petition “does not afford
the petitioner a new opportunity to . . . attack the sufficiency of
the evidence supporting the jury’s findings”]; People v. Allison
(2020) 55 Cal.App.5th 449, 461 [“[n]othing in the language of
section [1172.6] suggests it was intended to provide redress for
allegedly erroneous prior factfinding”], abrogated by People v.
Strong (2022) 13 Cal.5th 698, 718–720 [limiting this portion of
the holding in Allison to factfinding that occurred after People v.
Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63
Cal.4th 522 clarified the terms “major participant” and “with
reckless indifference to human life”].)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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