People v. Cole CA2/4

Filed 6/30/23 P. v. Cole CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B322542
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA055457
v.
TOMMIE LEE COLE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kathleen Blanchard, Judge. Affirmed.
Ava Stralla, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2014, appellant Tommie Lee Cole was convicted of two
counts of second degree murder (Pen. Code, § 187, subd. (a))1 for
causing a fatal collision while driving under the influence of
alcohol. The court sentenced appellant to a prison term of 30
years to life. A different panel of this court affirmed appellant’s
convictions in People v. Cole (Jan. 7, 2016, B254915) [nonpub.
opn.].
In 2021, appellant filed a petition for resentencing
pursuant to section 1172.6 (former section 1170.95).2 Following a
response by the People and a hearing, the court found that
appellant failed to establish a prima facie right to relief under
section 1172.6 and denied appellant’s petition.
On appeal, appellant’s appointed counsel filed a brief
raising no issues and requesting that this court independently
review the record for arguable issues pursuant to People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Appellant filed a
supplemental brief. We have considered appellant’s brief and
find no error in the superior court’s order denying resentencing.
We therefore affirm.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.)
There were no substantive changes to the statute. We hereafter
refer to the statute as section 1172.6.
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FACTUAL AND PROCEDURAL BACKGROUND3
Around 2:25 in the morning on February 26, 2012,
appellant’s car collided with another car in an intersection. The
other car flipped over, killing the two young men inside.
Appellant told a witness at the scene that he thought he was
intoxicated and that he thought his driver’s license was
suspended. Appellant was transported to the hospital, where he
told deputies from the Los Angeles County Sheriff's Department
that he “was doing 60 in a 40–mile–an–hour zone” and that he
was “trying to beat the yellow” light at the intersection.
Based on testing at the hospital, appellant had a blood
alcohol content between 0.21 and 0.23 percent at the time of the
accident, more than two and one half times the legal limit of 0.08.
Investigators from the Sheriff’s Department concluded that the
contributing factors to the accident were that appellant was
intoxicated and that he had run the red light in the intersection.
Appellant previously had been arrested for driving under
the influence in April 2009. Appellant’s driver’s license was
suspended and he was required to complete a three-month
alcohol program. When he applied to reinstate his driver’s
license, the form contained a warning that “it is extremely
dangerous to human life to drive while under the influence of
alcohol,” and that if appellant drove while intoxicated “and as a
result, a person is killed, [he could be] charged with murder.”
Appellant signed the form, certifying under penalty of perjury
that he had read and understood its contents. Additionally, the
3 On our own motion, we take judicial notice of our prior
opinion in this matter, People v. Cole (Jan. 7, 2016, B254915)
[nonpub. opn.]. The procedural and factual background set forth
here is drawn from this opinion.
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morning after the collision in February 2012, appellant told a
sheriff’s deputy that he “most definitely” understood the dangers
of drinking and driving and the potential consequences of
injuring or killing someone.
In February 2014, a jury found appellant guilty of two
counts of second degree murder (§ 187, subd. (a), counts 1 and 3),
two counts of gross vehicular manslaughter while intoxicated
(§ 191.5, subd. (a), counts 2 and 4), one count of driving under the
influence (DUI) causing injury (Veh. Code § 23153, subd. (a),
count 5), and one count of driving with a blood alcohol content of
0.08 percent (Veh. Code § 23153, subd. (b), count 6). The jury
also found true the special allegations that in the commission of
counts five and six, appellant caused great bodily injury or death
(§ 12022.7, subd. (a) and Veh. Code § 23558) and had a blood
alcohol content of 0.15 percent or more (Veh. Code § 23578).
The court sentenced appellant to a total term of 30 years to
life, consisting of 15 years to life for each murder count, to run
consecutively. The court stayed the sentences on all other counts
pursuant to section 654.
Appellant appealed, arguing that the jury lacked sufficient
evidence to find he had the implied malice necessary to support a
conviction for second degree murder. A different panel of this
court affirmed, finding that substantial evidence supported the
jury’s finding of implied malice under People v. Watson (1981) 30
Cal.3d 290 (Watson).
In August 2021, appellant filed a petition for resentencing
under section 1172.6. Appellant asserted that he had been
convicted of murder under the felony murder rule or natural and
probable consequences doctrine and could not now be convicted of
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first or second degree murder because of changes made to
sections 188 and 189.
The trial court appointed counsel for appellant. The People
filed a response to the petition, arguing that appellant was
ineligible for relief as a matter of law because he was convicted of
“second-degree implied malice Watson (DUI) murder.” The court
allowed appellant 30 days to submit a response, but appellant
elected not to file anything further.
The court held a hearing on June 30, 2022 regarding
whether the court should issue an order to show cause. Both
parties submitted on the pleadings. The court denied the
petition, finding that appellant failed to establish a prima facie
case that he was entitled to relief. Citing to the record of
conviction, including the jury instructions, the evidence
presented at trial, and the prior appellate opinion, the court
found that “it is very clear that Mr. Cole’s conviction in this
matter was for a Watson murder. It was not based on natural
and probable consequences. It wasn’t based on a felony murder
theory.” Accordingly, the court denied the petition, concluding
that appellant was ineligible for relief as a matter of law.
Appellant timely appealed.
On appeal, appellant’s appointed counsel filed a brief
requesting that we independently review the record for error
pursuant to Delgadillo, supra, 14 Cal.5th at pp. 231-232. In
Delgadillo, our Supreme Court held that when appointed counsel
finds no arguable issues in an appeal from the denial of a section
1172.6 petition, “(1) counsel should file a brief informing the court
of that determination, including a concise recitation of the facts
bearing on the denial of the petition; and (2) the court should
send, with a copy of counsel’s brief, notice to the defendant,
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informing the defendant of the right to file a supplemental letter
or brief and that if no letter or brief is filed within 30 days, the
court may dismiss the matter.” (Id. at pp. 231-232.) We retain
discretion to independently review the record in any section
1172.6 appeal. (Id. at p. 232.)
We directed counsel to send the record and a copy of the
brief to appellant. We also notified appellant of his right to
respond within 30 days and that his appeal could be dismissed if
he failed to respond. Appellant filed a supplemental letter brief.
DISCUSSION
Under Delgadillo, if an appellant files a supplemental brief,
“the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion.”
(Delgadillo, supra, 14 Cal.5th at p. 232.) Here, appellant’s
supplemental brief raises no issues related to the denial of his
petition for resentencing.
Appellant has failed to establish any error in the denial of
his petition for resentencing. Watson held that a person who,
knowing the hazards of driving under the influence, drives a
vehicle while intoxicated and proximately causes the death of
another, may be convicted of second degree murder under an
implied malice theory. (Watson, supra, 30 Cal.3d at pp. 300–
301.) A finding of implied malice in a Watson murder case,
unlike a finding of gross negligence, “depends upon a
determination that the defendant actually appreciated the risk
involved, i.e., a subjective standard.” (Id. at pp. 296–297.) As
such, a conviction for second degree murder based on implied
malice under Watson does not qualify for resentencing under
section 1172.6. (See Delgadillo, supra, 14 Cal.5th at p. 233
[finding that the defendant was ineligible for resentencing, where
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he was convicted of second degree implied malice murder for
causing a collision while intoxicated, because “the record here
makes clear that Delgadillo was the actual killer and the only
participant in the killing”]; People v. Roldan (2020) 56
Cal.App.5th 997, 1004 [second degree implied malice murder
under Watson is distinct from the natural and probable
consequences doctrine and survives under section 1172.6],
petition for review dismissed, overruled on other grounds by
People v. Lewis (2021) 11 Cal.5th 952.)
Here, the record of conviction unequivocally establishes
that appellant was charged and convicted as the sole perpetrator
based on an implied malice theory of second degree murder
pursuant to Watson. As such, the trial court correctly found that
appellant was ineligible for section 1172.6 relief as a matter of
law.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING P.J.
We concur:
MORI, J. ZUKIN, J

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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