People v. Jones CA2/2

Filed 6/21/23 P. v. Jones 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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, B324588
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA001430)
v.
MAURICE DEVON JONES,
Defendant and Appellant.
THE COURT:*
Defendant and appellant Maurice Devon Jones (defendant)
appeals from the denial of his petition for vacatur of his
convictions of murder and attempted murder and for
resentencing under Penal Code section 1172.6.1 Defendant’s
1 Defendant’s petition was filed as a petition under section
1170.95, but heard and decided after the effective date of the
statute’s renumbering as 1172.6. (See Stats. 2022, ch. 58, § 10.)
appointed counsel found no arguable issues and filed a brief
requesting we exercise our discretion to conduct an independent
review of the record or in the alternative, a review as set forth in
People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Following
the standard articulated in Delgadillo, we consider defendant’s
supplemental brief and conduct a limited review of the record.
(See id., at pp. 230–232.) Finding no merit to defendant’s appeal,
we affirm the judgment.
BACKGROUND
In 1992, defendant was convicted of one count of second
degree murder and one count of attempted murder. The jury
found true that defendant personally used a firearm within the
meaning of section 12022.5, and that defendant intentionally
inflicted great bodily injury upon the victim in count 2 within the
meaning of section 12022.7. In addition, the jury found the
attempted murder was willful, deliberate and premeditated.
Defendant admitted the one-year prior prison term allegation
pursuant to former section 667.5, subdivision (b). On March 19,
1992, defendant was sentenced to life in prison as to count 2, the
base term, plus a consecutive term of 15 years to life as to count
1, plus seven years due to the firearm and great bodily injury
enhancements. The judgment was affirmed in People v. Jones
(Sept. 29, 1993, B067036) [nonpub. opn.].
After defendant’s conviction, the Legislature passed Senate
Bill No. 1437 (2017–2018 Reg. Sess.), which amended sections
188 and 189, the laws pertaining to felony murder and murder
All further unattributed code sections are to the Penal Code
unless otherwise stated.
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under the natural and probable consequences doctrine, “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).) The Legislature passed former section 1170.95, now
section 1172.6, which provides a procedure to petition for
retroactive relief for those who could not now be convicted under
sections 188 and 189 as amended effective January 1, 2019. (See
People v. Lewis (2021) 11 Cal.5th 952, 957.) That procedure now
extends to those convicted of attempted murder under the
natural and probable consequences doctrine, as well as 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); see Stats. 2021, ch. 551, § 2.)
On March 11, 2022, defendant filed a petition to vacate his
murder conviction and for resentencing under the statute.
Defendant’s petition set forth the three conditions to eligibility
for resentencing: (1) he was charged with murder under a theory
of felony murder or the natural and probable consequences
doctrine; (2) he was convicted of murder; and (3) he could not
presently be convicted of murder because of changes to section
189, effective January 1, 2019. (See § 1172.6, subd. (a).) The
parties and the court proceeded with the assumption that the
petition encompassed defendant’s attempted murder conviction
as well.
After counsel was appointed for defendant, the prosecutor
filed opposition to the section 1172.6 petition, including as
exhibits the jury instructions and verdicts in defendant’s 1992
trial. Defendant filed a reply, and at the hearing to determine
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prima facie eligibility, both sides submitted the matter on their
briefs without argument. The trial court found defendant was
ineligible for resentencing as a matter of law and denied the
petition on October 20, 2022.
Defendant filed a timely notice of appeal from the court’s
order.
DISCUSSION
After examination of the record, appointed counsel filed an
opening brief raising no issues. Where, as here, appointed
counsel finds no arguable issues in an appeal that is not from the
first appeal after conviction, we are not required to conduct an
independent review of the record. (See Delgadillo, supra, 14
Cal.5th at p. 226.) However, even if we do not independently
review the record to identify unraised issues in such a case, we
give the defendant the opportunity to file his or her own
supplemental brief or letter and we then evaluate any specific
arguments raised. (See id., at p. 232.)
Here, counsel provided defendant with a copy of the record
on appeal and informed him of his right to file his own
supplemental brief. We notified defendant of counsel’s brief, gave
him 30 days to file his own letter or brief stating any grounds for
an appeal, contentions, or arguments that he wished to be
considered, and advised him that if no supplemental brief or
letter is timely filed the court may dismiss the appeal as
abandoned. Defendant has filed a supplemental brief within the
time allowed and has asserted that his low I.Q. and illiteracy
should have been alleged in the petition. It is not clear whether
defendant is asking this court to conduct an independent review
due to his circumstances, or whether he is asking that the matter
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be remanded to have the trial court consider them. Whether or
not there is a procedure in the law to revisit defendant’s sentence
due to his circumstances, there is no provision in section 1172.6
for vacatur of his convictions on this ground, and defendant has
cited no authority otherwise. We therefore conclude defendant
has raised no arguable issue regarding section 1172.6 or the
order which is the subject to this appeal. We are not required to
undertake an independent review of the record in search of
arguable issues. (Delgadillo, supra, 14 Cal.5th at p. 226.)
We “can readily confirm that . . . defendant is ineligible for
relief as a matter of law without conducting an independent
review of the entire record.” (Delgadillo, supra, 14 Cal.5th at
p. 230.) During the prima facie review, if the record of conviction
contains facts refuting the allegations of the petition as a matter
of law, no prima facie showing can be made, and the petition is
properly denied. (People v. Lewis, supra, 11 Cal.5th at p. 971.)
For example, if the record shows no jury instructions were given
regarding felony murder or the natural and probable
consequences doctrine, or that petitioner was the actual
perpetrator who acted with malice aforethought, he is ineligible
for relief as a matter of law. (People v. Harden (2022) 81
Cal.App.5th 45, 52–53, 55–56.)
As done in the trial court, we have reviewed the jury
instructions included with the prosecutor’s response to the
petition, and we have found no instructions regarding the felony
murder rule, the natural and probable consequences doctrine, or
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imputed malice.2 Furthermore, as noted below, the trial judge
crossed out all language from CALJIC Nos. 8.10 and 8.11 relating
to a killing in the course of participating in another crime. In
addition the court below noted the jury found defendant guilty of
second degree murder which was defined for the jury as
unpremeditated murder committed with express malice
aforethought, which in turn was defined as intent to kill.
The instructions and verdicts demonstrate defendant was
the actual perpetrator who acted with intent to kill and is thus
ineligible for relief under section 1172.6 as a matter of law. (See
People v. Harden, supra, 81 Cal.App.5th a pp. 55–56.) There was
no error in the denial of the petition.
DISPOSITION
The order denying the section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED.
*ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
2 We note there is an instruction regarding aiding and
abetting which possibly indicates an accomplice, but nothing
more.
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