People v. Young CA2/3 ( 2022 )

Filed 12/20/22 P. v. Young CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B314529
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA034176
v.
EUGENE YOUNG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael Shultz, Judge. Affirmed.
Lori Nakaoka, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Defendant and appellant Eugene Young appeals from
the superior court’s order denying his petition for resentencing
under Penal Code section 1172.6.1 We affirm because the record
of conviction establishes Young is ineligible for resentencing
as a matter of law.
BACKGROUND
On September 9, 1987, Thomas Lawson and Kathie Hodges
were robbed at gunpoint in their apartment in South Central
Los Angeles.2 In 1988 Young was convicted of that robbery
and placed on probation. At some point Hodges told authorities
there was a rumor during the robbery trial that Young “was
threatening to get even” with Lawson and Hodges for testifying
against him.
On January 6, 1989, around 9:30 p.m., Lawson, with
Hodges as his passenger, pulled his van into his parking space
behind his residence. Hodges was reaching into the back of
the van to get some packages as Lawson was getting out of the
driver’s side. Hodges heard a male voice say, “ ‘Pop.’ ” Two
or three gunshots followed. Lawson collapsed to the ground.
Hodges saw an African American man, about five feet, four
inches tall, running away.3 He put an object inside his waistband
as he ran.
1 References to statutes are to the Penal Code. Effective
June 30, 2022, former section 1170.95 was renumbered to section
1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
2 We take our facts from a July 1995 police report Young
attached to his petition in the superior court in support of his
request for relief.
3 Young is five feet, nine inches tall.
2
A witness walking by around that time told police he
had seen three African American men walking down the street.
Fifteen to 20 seconds later the witness heard a loud gunshot.
He saw the same three men running from the scene. One of the
men ran right past the witness, passing within two feet of him.
The man got into an Oldsmobile and drove off. The witness
wrote down the license number. The witness later chose Young’s
photograph out of a photo lineup as the man who had passed
right by him. In May 1989 police arrested Young, together with
two other men, in Barstow. In the meantime, on January 28,
1989, Lawson died from his gunshot wounds.
The People charged Young with Lawson’s murder.
The People alleged Young had personally used a firearm
in the commission of the crime and that he had a prior strike
for robbery. The case went to trial in 1996. The trial court
instructed the jury with (among other instructions) instructions
on Principals (CALJIC No. 3.00), Aiding and Abetting—Defined
(CALJIC No. 3.01), Murder—Defined (CALJIC No. 8.10), Malice
Aforethought—Defined (CALJIC No. 8.11), Deliberate and
Premeditated Murder (CALJIC No. 8.20), Unpremeditated
Murder of the Second Degree (CALJIC No. 8.30), Duty of Jury
as to Degree of Murder (CALJIC No. 8.70), and Doubt Whether
First or Second Degree Murder (CALJIC No. 8.71). The court did
not instruct the jury on the natural and probable consequences
doctrine or on felony murder.
On April 8, 1996, the jury found Young guilty of first degree
murder. The jury found not true the allegation that Young
personally used a firearm in the commission of the offense. The
trial court sentenced Young to 30 years to life, consisting of 25 to
life for the murder plus five years for the serious felony (robbery)
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prior. A different panel of this court affirmed Young’s conviction.
(People v. Young (Sept. 8, 1997, B104211) [nonpub. opn.].)
On June 3, 2021, Young, represented by counsel, filed
a petition for resentencing under section 1172.6. The petition,
signed by counsel, stated (1) an information had been filed
against Young “that allowed the prosecution to proceed under
a theory of the natural and probable consequences doctrine”;
(2) Young was convicted of first degree murder following a trial;
and (3) Young could not be convicted of murder “because of
changes to Section 188 or 189.” Young attached as exhibits
copies of the information, the July 1995 police report, and
the docket in his case. Young also attached a declaration
stating an information had been filed against him “allowing
the prosecution . . . to proceed under a theory of natural and
probable consequences”; he “could not now be convicted of
1st degree murder because of changes made to Penal Code §§ 188
and 189”; and he “could not now be convicted because of changes
to § 189 . . . because [he] was not the actual killer; [he] did not,
with the intent to kill, aid, abet, counsel, command, induce,
solicit, request, or assist the actual killer in the commission of
murder in the first degree; [and he] was not a major participant
nor did [he] act with reckless indifference to human life during
the course of the crime.”
On June 22, 2021, the trial court issued an order
summarily denying Young’s petition. The court stated, “The
petition for recall and resentencing pursuant to Penal Code
section [1172.6] is denied because the petitioner is not entitled
to relief as a matter of law, for the following reason: [¶] Penal
Code section [1172.6] allows relief when a person was convicted
of murder based upon a theory of felony murder or convicted
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of murder under a natural and probable consequences theory.
[Citation.] Here, the jury was neither instructed regarding
natural and probable consequences, nor instructed pursuant to
a theory of felony-murder. Therefore, petitioner is statutorily
ineligible for relief pursuant to Penal Code section [1172.6].”
Young appealed and we appointed counsel to represent him
on appeal. After examining the record, counsel filed an opening
brief raising no issues and asking this court independently to
review the record under People v. Wende (1979) 25 Cal.3d 436.
Counsel stated she had advised Young that he could file a
supplemental brief within 30 days. On July 18, 2022, we sent
Young a letter telling him the same thing. On August 11, 2022,
Young submitted a form request for an extension of time to file
a supplemental brief. We granted the request and extended time
to September 19, 2022. We never received any supplemental
brief from Young.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
1437) took effect on January 1, 2019. (See Stats. 2018, ch. 1015,
§ 4.) It limited accomplice liability under the felony-murder rule
and eliminated the natural and probable consequences doctrine
as it relates to murder to ensure a person’s sentence is
commensurate with his individual criminal culpability. (People v.
Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile); People v. Lewis
(2021) 11 Cal.5th 952, 957, 971 (Lewis).) Section 188, subdivision
(a)(3), added by Senate Bill 1437, now provides, “Malice shall not
be imputed to a person based solely on his or her participation
in a crime.” (§ 188, subd. (a)(3).)
5
Senate Bill 1437 also authorized, through new section
1172.6, a person convicted (as relevant here)4 of murder based
on the natural and probable consequences doctrine to petition
the sentencing court to vacate the conviction if he could not have
been convicted of murder because of Senate Bill 1437’s changes
to the definition of the crime. (See Lewis, supra, 11 Cal.5th
at pp. 959-960; Gentile, supra, 10 Cal.5th at p. 843.) Senate
Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), effective
January 1, 2022, amended section 1172.6 to permit individuals
convicted of murder under a “theory under which malice is
imputed to a person based solely on that person’s participation
in a crime” to petition for resentencing. (§ 1172.6, subd. (a).)
Section 1172.6 sets forth the procedure to be followed.
The first step is for the petitioner to make a prima facie showing
that he is eligible for relief. If he does, the court issues an order
to show cause and conducts an evidentiary hearing. (Lewis,
supra, 11 Cal.5th at pp. 959-960.) In determining whether the
petitioner has carried the burden of making the requisite
prima facie showing, the superior court properly examines the
record of conviction, “allowing the court to distinguish petitions
with potential merit from those that are clearly meritless.” (Id.
at p. 971.) However, “the prima facie inquiry under [section
1172.6] is limited. Like the analogous prima facie inquiry in
habeas corpus proceedings, ‘ “the court takes petitioner’s factual
allegations as true and makes a preliminary assessment
4 While Young’s declaration recites the statutory language
applicable to felony-murder cases—“a major participant” who
“act[ed] with reckless indifference to human life”—he properly
does not contend he was tried or convicted on a felony-murder
theory.
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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.” ’ . . . ‘However, if the record, including
the court’s own documents, “contain[s] facts refuting the
allegations made in the petition,” then “the court is justified in
making a credibility determination adverse to the petitioner.” ’ ”
(Ibid.; see People v. Daniel (2020) 57 Cal.App.5th 666, 675.)
The jury instructions are part of the record of conviction,
because the instructions “given at a petitioner’s trial may provide
‘readily ascertainable facts from the record’ that refute the
petitioner’s showing, and reliance on them to make the eligibility
or entitlement determinations may not amount to ‘factfinding
involving the weighing of evidence or the exercise of discretion,’ ”
which may not take place until after an order to show cause
issues. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055,
abrogated on other grounds in Lewis, supra, 11 Cal.5th 952;
cf. People v. Estrada (2022) 77 Cal.App.5th 941, 946 [jury
instructions showed trial court never instructed the jury on
the natural and probable consequences doctrine; summary
denial of petition affirmed].)
As we noted, the trial court here instructed the jury
with the basic jury instruction for direct aiding and abetting,
CALJIC No. 3.01. No instruction on the natural and probable
consequences doctrine appears in the record, nor does Young
suggest the jury was instructed on any target offense. By
convicting Young of first degree murder, the jury found, beyond
a reasonable doubt, that (at a minimum)5 Young “aid[ed],
5 The panel’s opinion in Young’s direct appeal noted, “[T]he
fact the jury found the firearm use enhancement not true does
not mean the jury found Young could not have been the one who
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promote[d], encourage[d] or instigate[d]” the commission of
Lawson’s murder “with knowledge of the unlawful purpose of
the perpetrator” and “with the intent or purpose of committing,
encouraging, or facilitating the commission of the crime.” (See
CALJIC No. 3.01.)6
Accordingly, Young is ineligible for resentencing under
section 1172.6 as a matter of law. (People v. Estrada, supra, 77
Cal.App.5th at pp. 943-944, 945-946 [affirming denial of petition
without issuing order to show cause because petitioner didn’t
meet his prima facie burden; jury not instructed on natural and
probable consequences doctrine; “[t]he record establishes that
shot Lawson.” The panel continued, “[Young] had an excellent
motive for killing Lawson, who not only cooperated with police
after Young robbed him in 1987, some 15 months before the
shooting, but even testified at the preliminary hearing, after
which Young pled guilty. Two witnesses identified Young
as being one of the three assailants. Although a third witness,
Hodges, did not identify Young, her description of a light-skinned
man wearing a bomber jacket was consistent with the description
of Young given by [witnesses 1 and 2]. The only issue was
whether Young was the man who held his hand at his waist
as though he were hiding something when fleeing the crime
scene. While [witness 2]’s testimony on this point was equivocal,
[witness 1] unequivocally testified he saw the light-skinned man
holding his left hand at his waist and his right hand over his left
hand. It could reasonably be inferred this conduct was intended
[to] conceal a gun. [Witness 1] identified this man as Young.”
6 Nor does anything in the record even suggest that Young
was prosecuted or convicted on a theory of imputed malice.
A person can be convicted as a direct aider and abettor without
there being any possibility of his being convicted under a doctrine
of imputed malice. (See Gentile, supra, 10 Cal.5th at p. 844.)
8
[petitioner] was convicted of first degree murder as an aider
and abettor with intent to kill, and he is therefore ineligible for
resentencing under section [1172.6]”]; People v. Nguyen (2020)
53 Cal.App.5th 1154, 1166-1167 [defendant convicted of murder
as aider and abettor was not entitled to relief as a matter of law];
cf. Gentile, supra, 10 Cal.5th at pp. 844-845 [person who directly
aids and abets a murder possesses malice aforethought].)
We have independently reviewed the record and find no
arguable issues. We are satisfied that Young’s counsel has fully
complied with her responsibilities and that no arguable issues
exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v.
Wende, supra, 25 Cal.3d at p. 441.)
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DISPOSITION
We affirm the superior court’s order denying Eugene
Young’s petition for resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
RICHARDSON (ANNE K.), J.

Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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