People v. Russell CA2/2 ( 2022 )

Filed 8/31/22 P. v. Russell CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B314572
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA371243)
v.
CHERNOBY RUSSELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Drew E. Edwards, Judge. Affirmed.
Spolin Law and Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Daniel C. Chang and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Chernoby Russell (defendant)
appeals from the denial of his petition for vacatur of his murder
and attempted murder convictions and for resentencing under
former Penal Code section 1170.95.1 He contends that he made a
prima facie showing of eligibility for relief under that statute,
which required the court to issue an order to show cause and hold
an evidentiary hearing. We find no error and thus affirm the
order.
BACKGROUND
In 2012, a jury convicted defendant of one count of first
degree willful, deliberate, and premeditated murder (§ 187, subd.
(a)), and one count of willful, deliberate, and premeditated
attempted murder (§§ 664/187), committed in 2010.2 The jury
found true several gun enhancements alleged pursuant to
section 12022.53 and that the crimes were committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)). Defendant
was sentenced to a total prison term of 75 years to life. In 2014,
we affirmed the judgment in People v. Russell (Feb. 5, 2014,
B243631) (nonpub. opn.).
In February 2019 defendant filed a petition pursuant to
former section 1170.95, alleging that a complaint, information, or
indictment had been filed against him that allowed the
prosecution to proceed under a theory of felony murder or murder
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no substantive change in text.
(Stats. 2022, ch. 58, § 10.) All further unattributed code sections
are to the Penal Code unless otherwise stated.
2 Defendant was tried with codefendant James Evans, Jr.,
who was also convicted of the murder and attempted murder.
2
under the natural and probable consequences doctrine, and he
was convicted at trial of first or second degree murder under one
of those theories. In a November 2020 amendment to the
petition, defendant alleged that he was also convicted of
attempted murder under the natural and probable consequences
doctrine. As amended, the petition further alleged that
defendant could not now be convicted of murder or attempted
murder due to changes made to sections 188 and 189 effective
January 1, 2019, because he was not the actual killer; 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; was not a major participant in the
felony or act with reckless indifference to human life in the
commission of the felony; and the victim of the murder was not a
peace officer.
The trial court appointed counsel, permitted both sides to
file briefs, and scheduled a hearing to determine whether
defendant had made a prima facie showing of eligibility under
former section 1170.95. After considering argument of counsel,
the trial court took the matter under submission and denied the
petition on July 14, 2021, without issuing an order to show cause.
Defendant filed a timely notice of appeal from the court’s
order.
DISCUSSION
Defendant contends that the trial court erred in both
finding that defendant had not made a prima facie showing
under former section 1170.95 and in denying his petition without
holding an evidentiary hearing.
3
Effective January 1, 2019, the Legislature amended the
laws pertaining to felony murder and murder 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).) This provision
“bars a conviction for first or second degree murder under a
natural and probable consequences theory.” (People v. Gentile
(2020) 10 Cal.5th 830, 846 (Gentile).) The Legislature also added
former section 1170.95 (now § 1172.6), which provides a
procedure for convicted murderers to seek retroactive relief if
they could not be convicted under sections 188 and 189 as
amended effective January 1, 2019. (People v. Lewis (2021) 11
Cal.5th 952, 957 (Lewis).) Effective January 1, 2022, former
section 1170.95 was amended to apply to those convicted of
attempted murder under the natural and probable consequences
doctrine. (See Stats. 2021, ch. 551, § 2.)
Prior to the 2019 amendments to section 189 enacted by
Senate Bill No. 1437 (2018-2019 Reg. Sess.), felony-murder law
provided that anyone who committed or attempted to commit a
felony listed in section 189, subdivision (a) in which a death
occurred was liable for first degree murder without proof of an
intent to kill or even implied malice, so long as the defendant
intended to commit the underlying felony. (People v. Eynon
(2021) 68 Cal.App.5th 967, 973, quoting People v. Bryant (2013)
56 Cal.4th 959, 965.)
Under the (now invalid) natural and probable consequences
theory an accomplice was guilty not only of the “target offense”
(the offense directly aided or abetted) but also of any “nontarget
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offense” (any other offense committed by the direct perpetrator
that was the natural and probable consequence of the target
offense). (Gentile, supra, 10 Cal.5th at p. 843.) “A nontarget
offense is the natural and probable consequence of a target
offense ‘if, judged objectively, the [nontarget] offense was
reasonably foreseeable.’” (Ibid.)
Defendant’s amended petition set forth the three conditions
to eligibility for resentencing: (1) the petitioner was charged with
murder or attempted murder under the natural and probable
consequences doctrine; (2) petitioner was convicted of murder or
attempted murder; and (3) “petitioner could not presently be
convicted of murder or attempted murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (Former
§ 1170.95, subd. (a).) As defendant’s petition alleged the three
conditions for relief, the trial court was required to appoint
counsel and entertain briefing, which this court did. (Former
§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 957, 962.)
The court then conducted a prima facie analysis, which included
examination of the record of conviction, as permitted under
former section 1170.95, subdivision (c). (See Lewis, at p. 972.)
Defendant mistakenly contends that the trial court was
required to undertake two separate prima facie reviews. During
the prima facie review, if the record of conviction shows that
petitioner is ineligible for relief as a matter of law, no prima facie
showing can be made, and the petition is properly denied.
(Lewis, supra, 11 Cal.5th at p. 971.) For example, where no jury
instructions were given regarding felony murder or the natural
and probable consequences doctrine, a petitioner is ineligible for
relief as a matter of law. (People v. Daniel (2020) 57 Cal.App.5th
666, 677.)
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The trial court reviewed the CALCRIM jury instructions
given at defendant’s trial, all of which have been reproduced in
the record of this appeal. The jury was not instructed with
CALCRIM No. 403 or any other instruction regarding the natural
and probable consequences doctrine. Nor was the jury given
felony-murder instructions, CALCRIM Nos. 540A (where
defendant allegedly caused the death) or 540B (where a
coparticipant allegedly caused the death). As no jury instructions
were given at defendant’s trial regarding felony murder or
natural and probable consequences, defendant is ineligible for
relief under section 1170.95 as a matter of law.
Furthermore, “under [former] section 1170.95, a petitioner
must make a prima facie showing that he or she ‘could not
[presently] be convicted of first or second degree murder because
of changes to Section 188 or 189’ made by Senate Bill No. 1437.”
(People v. Farfan (2021) 71 Cal.App.5th 942, 954, quoting former
§ 1170.95, subd. (a)(3).) Defendant is unable to do so, as he was
convicted either as the actual killer or a direct aider and abettor
who harbored either express or implied malice. The jury was
instructed with CALCRIM No. 520 that a finding of intent to kill
or implied malice was required for a murder conviction and with
CALCRIM No. 600 that a finding of intent to kill was required for
a conviction of attempted murder. The jury was also instructed
with CALCRIM Nos. 400 and 401 that to find defendant guilty as
an aider and abettor or the person who committed the crime, it
must find that defendant knew of the perpetrator’s unlawful
intent and specifically aided, facilitated, promoted, encouraged,
or instigated the commission of the crime. Directly aiding and
abetting a murder remains a valid basis of liability for murder
under the amendments to the murder laws. (Gentile, supra, 10
6
Cal.5th at p. 848.) Directly aiding and abetting attempted
murder remains a valid theory for conviction. (People v. Coley
(2022) 77 Cal.App.5th 539, 548.)
In his opening brief defendant contends that the jury was
instructed regarding felony murder based on the underlying
crime of discharge of a firearm from a motor vehicle and that he
was convicted of felony murder. Defendant fails to point to a
particular instruction in the record. Instead, he bases his
contention on the representation in the prosecution’s response to
his petition that the prosecutor at defendant’s trial argued that
defendant committed murder that was willful, deliberate, and
premeditated or felony murder by means of the discharge of a
firearm from a motor vehicle.3 Defendant’s claim also mirrors the
court’s ruling on the petition in which it concluded “that the
petitioners were convicted in this case under either a theory of
willful, deliberate, and premeditated murder, or a theory of
felony murder for the crime of discharge of a firearm from a
motor vehicle which requires an intent to kill on behalf of the
perpetrator.”
As the People observe, the court was mistaken. The jury
was not instructed that intent to kill or implied malice was
unnecessary to a murder conviction, rather the jury was
instructed with CALCRIM No. 520 that to find defendant guilty
3 Neither party has asked that we take judicial notice of the
trial record, and the arguments of counsel have not been included
in the appellate record, which include the information and jury
instructions taken from the trial record. The exhibits attached to
the prosecution’s response to defendant’s petition are copies of
the appellate opinion in People v. Russell, supra, B243631, the
jury instructions, and the verdicts.
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of murder it must find that he acted with express or implied
malice, which the instruction defined, and added, “If you decide
the defendant committed murder, you must then decide whether
it is murder of the first or second degree.” (Italics added.) This
was followed by CALCRIM No. 521, which instructed that
murder was of the first degree if it was willful, deliberate and
premeditated or was committed by means of discharge of a
firearm from a vehicle. CALCRIM No. 521 was followed by
CALCRIM No. 548, which instructed that the “defendants have
been prosecuted for murder under two theories: (1) malice
aforethought, and (2) murder by means of discharge of a firearm
from a vehicle. [¶] Each theory of murder has different
requirements, and I will instruct you on both.” (Italics added.)
Despite the future tense, the court had already read instructions
on the elements of murder based upon express and implied
malice.
In sum, the jury was instructed to first find defendant
guilty or not guilty of murder and then, if guilty, to determine the
degree of murder based on one of two theories, premeditation and
deliberation or shooting from a motor vehicle. The verdict form
confirms that the jury did just that, by stating in relevant part:
“We, the Jury . . . find [defendant] guilty of the crime of
MURDER . . . .” Below that, the verdict states: “We further find
the murder was of the First Degree.” (Italics added.)
As the jury was not instructed with regard to felony murder
or the natural and probable consequences doctrine, defendant
failed to make a prima facie showing of eligibility for former
section 1170.95 relief as a matter of law. (See People v. Daniel,
supra, 57 Cal.App.5th at p. 677.) In ruling on the former section
1170.95 petition, the court here apparently misinterpreted one of
8
the instructions as a felony-murder instruction. Despite this
misinterpretation, we agree with the People that the court’s
ruling that defendant was ineligible for relief is correct and must
thus be affirmed. (See People v. Smithey (1999) 20 Cal.4th 936,
972 [ruling correct on the law is affirmed regardless of lower
court’s reasoning].)
In reply, defendant acknowledges there was no instruction
regarding felony murder or the natural and probable
consequences doctrine, but suggests that because his petition
contained all the required allegations, he sufficiently made a
prima facie showing of eligibility. We disagree. Once the court
appoints counsel and receives briefing from the parties, as the
trial court did here, it is appropriate to review and determine the
merit of the record of conviction. (Lewis, supra, 11 Cal.5th at
pp. 970-972.)
Defendant also presents the evidence as summarized in
People v. Russell, supra, B243631, and argues that he “must
have” been convicted of felony murder or murder and attempted
murder under the natural and probable consequences doctrine
because the evidence was not sufficient to convict him otherwise.
Defendant is not permitted to relitigate the sufficiency of the
evidence to support a guilty verdict in the prima facie stage of a
former section 1170.95 proceeding. (See People v. Farfan, supra,
71 Cal.App.5th at p. 947.) “‘The purpose of [former] section
1170.95 is to give defendants the benefit of amended sections 188
and 189 with respect to issues not previously determined, not to
provide a do-over on factual disputes that have already been
resolved.’” (Ibid.)
We conclude that the trial court correctly found that
defendant was ineligible for relief under former section 1170.95.
9
DISPOSITION
The order denying the petition is affirmed.
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
_______________________________
HOFFSTADT, J.
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