People v. Dalton CA5 ( 2022 )


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  • Filed 12/20/22 P. v. Dalton CA5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
    FIFTH APPELLATE DISTRICT
    THE PEOPLE,
    F084303
    Plaintiff and Respondent,
    (Super. Ct. No. F11901198)
    v.
    ALVIN HENRY DALTON,                                                                   OPINION
    Defendant and Appellant.
    THE COURT*
    APPEAL from an order of the Superior Court of Fresno County. Gary R. Orozco,
    Judge.
    William W. Lee, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Office of the State Attorney General, Sacramento, California, for Plaintiff and
    Respondent.
    -ooOoo-
    *        Before Hill, P. J., Poochigian, J. and Franson, J.
    Appointed counsel for defendant Alvin Henry Dalton asked this court to review
    the record to determine whether there are any arguable issues on appeal. (People v.
    Wende (1979) 
    25 Cal.3d 436
    .) Defendant was advised of his right to file a supplemental
    brief within 30 days of the date of filing of the opening brief. Defendant responded,
    contending the superior court erred in summarily denying his petition for resentencing
    filed pursuant to former Penal Code section 1170.951 (now § 1172.6).2 We affirm.
    BACKGROUND
    A feud had existed for some time between next door neighbors in a Fresno
    apartment complex—defendant and his girlfriend Lora on one side of the feud and
    Danetta H. and her two teenaged children, daughter Dazhane and son Dezmon, on the
    other side. On March 2, 2011, defendant intervened in a physical altercation between
    Lora and the three neighbors, and then he pulled out a gun and shot all three neighbors.
    As a result of the shootings, Danetta died from a gunshot wound to the head, Dazhane
    suffered serious injuries requiring surgery, and Dezmon suffered superficial injuries.
    (People v. Dalton (Jan. 30, 2014, F063443) [nonpub. opn.] (Dalton).)3
    At about 11:30 a.m. that day, “Danetta and Dazhane were walking home from a
    nearby store when Lora started spraying them with mace and another strong-smelling
    substance. Dazhane reacted by throwing Gatorade bottles and a water bottle towards
    Lora, and Danetta sprayed Lora with a mixture of water and insect spray.
    “Lora went inside her apartment and shortly remerged carrying a pot of steaming
    hot water. Lora ran towards Danetta and poured the water on her. Lora then hit Danetta
    1      All statutory references are to the Penal Code.
    2     Effective June 30, 2022, section 1170.95 was renumbered as section 1172.6 with
    no substantive change. (Stats. 2022, ch. 58, § 10.) We will refer to section 1172.6
    henceforth.
    3      We take judicial notice of the opinion and record in Dalton, supra, F063443.
    2.
    multiple times with the pot. Dazhane ran over and grabbed Lora by the hair and hit Lora
    multiple times in the head.
    “Defendant, who had been outside fixing the lock on his door, went to grab
    Dazhane and pull her off Lora. As he pulled Dazhane away from Danetta and Lora,
    defendant said, ‘Let it be a one-on-one fight.’ Dazhane continued to hit and kick
    defendant as he moved her away from Danetta and Lora who were now both on the
    ground.
    “Dazhane was able to get away from defendant and called out for her brother,
    Dezmon. A few seconds later, Dezmon ran out of their apartment and tried to pull Lora
    off Danetta. In the meantime, defendant punched Dazhane in the face and she fell to the
    ground. After defendant punched Dazhane, Dezmon asked, ‘You just going to hit my
    sister?’ Defendant replied, ‘yes.’
    “Dezmon pushed defendant and punched him in the face. Defendant said, ‘Oh,
    you’re going to hit me, you’re going to hit me?’ Then defendant said, ‘F[**]k this sh[*]t’
    and pulled out a gun. After firing one shot into the air, defendant pointed the gun at
    Danetta and shot her two to three times. After Danetta fell to the ground, defendant
    pointed the gun at Dazhane and shot her twice. Defendant then pointed the gun at
    Dezmon and fired two shots.
    “Dezmon started walking towards defendant and said, ‘You shot my mom’ and
    ‘You killed my mom.’ Defendant said ‘yes’ to each statement. Dezmon became angry,
    grabbed defendant’s arm, and started wrestling with defendant standing up. As they were
    wrestling, defendant touched Dezmon’s chest with the gun and Dezmon heard a click.
    Lora came up next to them and asked defendant to give her the gun. Defendant handed
    Lora the gun and let go of Dezmon. Defendant then went into his apartment.” (Dalton,
    supra, F063443.)
    3.
    In his defense, “[d]efendant described living next door to Danetta as ‘constant
    terrorism.’ Defendant explained that Danetta had threatened him and his personal
    property many times, and had vandalized his patio, car, and truck.
    “On the night before the shooting, defendant came home to find his security screen
    door covered with a ‘sludge material’ including pasta. Lora had to let him in because he
    could not get his key in the lock. Defendant got three pots of hot water and took them
    outside to clean the door.
    “Around 11:00 p.m., Danetta came out and said, ‘um-hum, you’re going to be
    cleaning all night’ and ‘[m]e and my homeboys, we’re going to jack you—you and your
    car tonight,’ referring to the Strothers Boys gang. Dazhane was standing next to Danetta
    when she made this threat. Defendant took it to be a credible threat because Danetta had
    carried out all her past threats.
    “After Danetta threatened him, defendant immediately went inside his home and
    armed himself. He then went back outside and threw hot water on the security screen
    door. It took him about 30 minutes to clean the door. Defendant also called the police
    that night. He estimated that there had been 50 such incidents in the past six months
    where the police had been called.
    “The next morning, defendant went outside to clean the lock on the security screen
    door. Dazhane tried to follow Lora inside their apartment, but defendant stopped her. He
    then turned his attention back to cleaning the lock. Next defendant heard Danetta and
    Dazhane cussing and yelling at Lora. He turned around and saw Danetta and Lora
    ‘tangled’ on the ground, and saw Dazhane kicking and punching Lora in the head.
    Defendant dropped what he was doing and ran over and pulled Dazhane off of Lora.
    Dazhane punched defendant in the face, kicked him in the legs and groin area, and tried
    to bite him in the chest.
    “Defendant then saw Dezmon run over to Lora and start pulling her hair and
    hitting her. Defendant ran over to protect Lora. Defendant saw Dezmon reach into his
    4.
    left pocket. As defendant was looking down, Dezmon punched him. Defendant then
    reached for his gun. Defendant explained he reached for his gun because he was in fear
    for his life based on the threat Danetta had made to him the previous night. Defendant
    reiterated that ‘every time she would make a threat, she would follow through with it.’
    “According to defendant, before he reached for his gun, all three family
    members—Danetta, Dazhane, and Dezmon—were hitting and kicking him. Defendant
    estimated he was hit five to six times and kicked three or four times. When defendant
    pulled out his gun, Danetta and Dazhane were standing facing him and Dezmon was
    behind him. Defendant fired his gun because he was in fear for his life and was trying to
    escape to his apartment.” (Dalton, supra, F063443, fn. omitted.)
    On August 29, 2011, a jury found defendant guilty of second degree murder
    (§ 187, subd. (a); count 1) and two counts of unpremeditated attempted murder (§§ 664,
    187, subd. (a); count 2 (Dazhane) & count 3 (Dezmon)). The jury also found true various
    firearm use allegations (§§ 12022.5, subd. (a), 12022.7, subd. (a), 12022.53, subd. (c),
    12022.53, subd. (d)).
    On September 27, 2011, the trial court sentenced defendant to 83 years to life, as
    follows: on count 1, 15 years to life, plus 25 years to life for the section 12022.53,
    subdivision (d) enhancement; on count 2, a consecutive term of nine years, plus 25 years
    to life for the section 12022.53, subdivision (d) enhancement; on count 3, a consecutive
    term of two years four months, plus six years eight months for the section 12022.53,
    subdivision (c) enhancement. The remaining enhancements were stayed.
    Over 10 years later, on March 21, 2022, defendant filed a petition for resentencing
    under section 1172.6 in the superior court. On the standardized petition form, defendant
    checked all the listed claims and requested the appointment of counsel.
    On April 5, 2022, apparently without appointing counsel, the superior court
    summarily denied the petition in a written order, as follows:
    5.
    “The Court is in receipt of a Petition for Resentencing filed pursuant
    to … section [1172.6] on March 21, 2022. The petition is summarily
    denied.
    “[Defendant] … was convicted of murder and two counts of
    attempted murder. The appellate opinion affirming [defendant’s]
    conviction and sentence, as well as the Court’s records, reflect that
    [defendant] was the actual killer and was convicted of murder and
    attempted murder on a theory of being the direct perpetrator and not on a
    theory of felony murder of any degree, or a theory of natural and probable
    consequences.”
    On May 4, 2022, defendant filed a notice of appeal.
    DISCUSSION
    In his supplemental brief, filed in propria persona, defendant raises a multitude of
    issues that go to the propriety of his trial and convictions. The time for raising trial issues
    was in his first appeal and has now passed. Those issues are not cognizable on this
    appeal.4 The only issue properly before us is the denial of defendant’s 2022 resentencing
    petition.
    I.     Law
    Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), effective
    January 1, 2019, substantially modified the law governing accomplice liability for
    murder, significantly narrowing the felony-murder exception to the malice requirement
    for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 
    13 Cal.5th 698
    , 707–708 (Strong); People v. Lewis (2021) 
    11 Cal.5th 952
    , 957 (Lewis)), and
    eliminating the natural and probable consequences doctrine as a basis for finding a
    defendant guilty of murder (People v. Gentile (2020) 
    10 Cal.5th 830
    , 842–843 (Gentile)).
    Senate Bill 1437 was enacted to “amend the felony murder rule and the natural and
    4       We also note that defendant claims the record on appeal has been tampered with
    and is inaccurate because material is missing and has been replaced. He states he did not
    realize this until after his direct appeal. Presumably, defendant’s support for this claim
    falls outside the record on appeal and would need to be presented by way of a petition for
    writ of habeas corpus.
    6.
    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, subd. (f).)
    As amended by Senate Bill 1437, section 188, subdivision (a)(3), prohibits
    imputing malice based solely on an individual’s participation in a crime and requires
    proof of malice to convict a principal of murder, except under the revised felony-murder
    rule in section 189, subdivision (e). The latter provision requires the prosecution to prove
    specific facts relating to the defendant’s individual culpability: The defendant was the
    actual killer (§ 189, subd. (e)(1)); the defendant, though not the actual killer, with the
    intent to kill, assisted in the commission of the murder (§ 189, subd. (e)(2)); or the
    defendant was a major participant in a felony listed in section 189, subdivision (a), and
    acted with reckless indifference to human life, “ ‘as described in subdivision (d) of …
    Section 190.2,’ ” the felony-murder special-circumstance provision. (Strong, supra,
    13 Cal.5th at p. 708; see Gentile, supra, 10 Cal.5th at pp. 842–843.)
    Senate Bill 1437 also added section 1172.6, which authorized an individual
    convicted of felony murder or murder based on the natural and probable consequences
    doctrine to petition the superior court to vacate the conviction and be resentenced on any
    remaining counts if he or she could not now be convicted of murder because of the
    changes Senate Bill 1437 made to the definitions of the crime. (See Strong, supra, 13
    Cal.5th at p. 708; Lewis, supra, 11 Cal.5th at p. 957; Gentile, supra, 10 Cal.5th at p. 843.)
    In 2021, Senate Bill No. 775 (2021–2022 Reg. Sess.), extended the provisions of
    section 1172.6 to include convictions for attempted murder and manslaughter by
    modifying the law to “expand the authorization to allow a person who was convicted of
    murder under any theory under which malice is imputed to a person based solely on that
    person’s participation in a crime … to apply to have their sentence vacated and be
    resentenced,” (Legis. Counsel’s Dig., Sen. Bill No. 775 (2021–2022 Reg. Sess.)) and to
    7.
    clarify “that persons who were convicted of attempted murder or manslaughter under a
    theory of felony murder and the natural probable consequences doctrine are permitted the
    same relief as those persons convicted of murder under the same theories.” (Stats. 2021,
    ch. 551, § 1, subd. (a).)
    Now section 1172.6 allows “[a] person convicted 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, attempted
    murder under the natural and probable consequences doctrine, or manslaughter [to] file a
    petition with the court that sentenced the petitioner to have the petitioner’s murder,
    attempted murder, or manslaughter 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 of felony murder, 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, or attempted murder under the natural and
    probable consequences doctrine. [¶] (2) The petitioner was convicted of murder,
    attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a
    trial at which the petitioner could have been convicted of murder or attempted murder.
    [¶] (3) The petitioner could not presently be convicted of murder or attempted murder
    because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
    subd. (a).)
    Subdivision (b)(1) of section 1172.6 requires that the petition be filed with the
    court that sentenced the petitioner, and must include (a) a declaration by the petitioner
    that he or she is eligible for relief under the section; (b) the superior court case number
    and year of conviction; and (c) whether the petitioner requests appointment of counsel.
    Subdivision (b)(2) provides that the trial court may deny the petition without prejudice if
    any of the information required by subdivision (b)(1) is missing and cannot be readily
    8.
    ascertained by the court. And subdivision (b)(3) states: “Upon receiving a petition in
    which the information required by this subdivision is set forth or a petition where any
    missing information can readily be ascertained by the court, if the petitioner has
    requested counsel, the court shall appoint counsel to represent the petitioner.”
    Subdivision (c) provides that after allowing the prosecution and petitioner additional time
    to submit briefings, “the court shall hold a hearing to determine whether the petitioner
    has made a prima facie case for relief. If the petitioner makes a prima facie showing that
    the petitioner is entitled to relief, the court shall issue an order to show cause. If the court
    declines to make an order to show cause, it shall provide a statement fully setting forth its
    reasons for doing so.”
    II.    Analysis
    In this case, it appears the superior court summarily denied defendant’s petition
    without following the procedure required by law. Assuming this is the case, we
    nevertheless conclude any error was harmless. As Lewis provides, a superior court’s
    failure to appoint counsel to represent a petitioner when assessing whether he or she has
    made a prima facie showing of entitlement to relief is state law error only, reviewable for
    prejudice under People v. Watson (1956) 
    46 Cal.2d 818
    . (Lewis, supra, 11 Cal.5th at
    pp. 957, 973–974.) “More specifically, a petitioner ‘whose petition is denied before an
    order to show cause issues has the burden of showing “it is reasonably probable that if
    [he or she] had been afforded assistance of counsel his [or her] petition would not have
    been summarily denied without an evidentiary hearing.” ’ ” (Id. at p. 974.)
    Here, defendant was charged as the sole perpetrator of the murder and the
    attempted murders. The jurors were instructed that murder required that defendant
    himself harbored malice, either express or implied; that first degree murder required that
    defendant acted willfully, deliberately, and with premeditation; and that provocation
    could reduce murder from first degree to second degree. The jurors were similarly
    instructed on attempted murder and asked to determine whether defendant acted willfully,
    9.
    deliberately, and with premeditation. The jurors were not instructed on felony murder or
    any vicarious liability theories that would allow malice to be imputed to defendant based
    on his participation in the crimes. Under the instructions given, the jurors found that
    defendant himself shot both Danetta and her children; he committed murder and
    attempted murder, but he did not act willfully, deliberately, and with premeditation.
    These findings were further supported when the jurors expressly found that defendant
    personally used a firearm and personally and intentionally discharged a firearm causing
    great bodily injury or death to Danetta. As to Dazhane, the jurors expressly found that
    defendant personally used a firearm, personally inflicted great bodily injury upon her, and
    personally and intentionally discharged a firearm, and personally and intentionally
    discharged a firearm causing great bodily injury. Finally, as to Dezmon, the jurors
    expressly found that defendant personally used a firearm, and personally and
    intentionally discharged a firearm.
    In sum, the jurors found that defendant shot both Danetta and her children and was
    the actual killer and the actual attempted killer. Therefore, defendant is ineligible for
    resentencing under section 1172.6 as a matter of law. Accordingly, defendant’s petition
    would have been denied even if counsel had been appointed. Defendant was not
    prejudiced by the superior court’s summary denial of his petition. (Lewis, supra, 11
    Cal.5th at pp. 972–974.)5
    DISPOSITION
    The superior court’s denial of defendant’s section 1127.6 resentencing motion is
    affirmed.
    5      Defendant’s motions for discovery and an evidentiary hearing are denied.
    10.
    

Document Info

Docket Number: F084303

Filed Date: 12/20/2022

Precedential Status: Non-Precedential

Modified Date: 12/20/2022