People v. Leslie CA2/3 ( 2021 )

Filed 1/27/21 P. v. Leslie 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B301848
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA091536)
v.
DESHAWN LESLIE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, H. Clay Jacke II, Judge. Affirmed.
Susan K. Shaler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Roberta L. Davis, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
In 2008, a jury convicted defendant and appellant Deshawn
Leslie of the first degree murder of Ivan Nieves. Leslie’s
accomplice was the actual killer. After passage of Senate Bill
No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), Leslie
petitioned for resentencing pursuant to Penal Code section
1170.95.1 After appointing counsel for Leslie and considering
briefing by the parties, the court denied the petition because
Leslie’s jury was not instructed on felony murder or the natural
and probable consequences doctrine, and he was convicted as a
direct aider and abettor. Leslie appeals, contending that the jury
might have relied on the natural and probable consequences
theory despite the absence of instruction on it, and the trial court
erred by relying on this court’s opinion in his direct appeal. We
disagree, and affirm the court’s order.
FACTUAL AND PROCEDURAL BACKGROUND2
1. The murder
Leslie was a member of the Tree Top Piru criminal street
gang. Leslie’s cousin, known as “Day-Day,” and William Davis
were also members of the gang. The Segundos, a Hispanic gang,
and the Tree Top Piru gang were rivals. Segundo gang members
were known to wear blue baseball caps.
1
All further undesignated statutory references are to the
Penal Code.
2 At Leslie’s request, we have taken judicial notice of this
court’s records in his direct appeal, case No. B206632. (Evid.
Code, §§ 452, subd. (d), 459.) We derive the factual and
procedural background primarily from our prior opinion, which is
part of the record of conviction.
2
On April 22, 2006, Day-Day was shot and wounded.
Members of the Tree Top Piru gang believed the Segundo gang
was responsible. That evening, Davis asked Leslie to drive him
around so he could “ ‘look and see if anybody [was] out.’ ” Leslie
agreed. Davis was armed with a gun. Leslie drove down Lime
Avenue in Compton, an area claimed as the Segundo gang’s
territory. A second vehicle, driven by another Tree Top Piru gang
member, followed behind Leslie’s car.
Nieves, who was Latino, was seated in his Mustang on
Lime Avenue, wearing a blue Dodgers baseball cap. He was not a
member of any gang. Leslie parked his car in front of Nieves’s
Mustang. He knew Davis intended to “ ‘bang on [Nieves] and ask
him where he was from,’ ” i.e., challenge Nieves by asking for his
gang affiliation. Davis exited the car, walked over to Nieves,
and—believing Nieves was a Segundo gang member—fired
numerous rounds at him. Eight shots hit Nieves, killing him.
2. Leslie’s conviction and direct appeal
At Leslie’s trial, the prosecution advanced two theories:
that Leslie could be found guilty of first degree murder as an
aider and abettor, or under a conspiracy theory. The jury
convicted him of first degree murder. It also found true principal-
armed and criminal street gang enhancements. (§§ 12022.53,
subd. (d), 186.22, subd. (b)(1).) The trial court sentenced Leslie to
50 years to life in prison, plus a consecutive life term.
This court affirmed Leslie’s judgment in 2009. (People v.
Leslie (Mar. 18, 2009, B206632) [nonpub. opn.].)
3. The section 1170.95 petition
On January 29, 2019, Leslie filed a section 1170.95
resentencing petition. Using a preprinted form, he checked boxes
stating that a charging document had been filed against him
3
allowing the prosecution to proceed under a felony-murder theory
or the natural and probable consequences doctrine; he was
convicted of first or second degree murder under one of those
theories; he could not now be convicted of murder in light of
changes to the law wrought by Senate Bill 1437; he was not the
actual killer, nor did he aid and abet the actual killer with the
intent to kill; he was not a major participant in the felony and did
not act with reckless indifference to human life; and the victim
was not a peace officer. He also requested the appointment of
counsel.
The trial court appointed counsel for Leslie. The People
opposed the petition on the grounds that Leslie was convicted as
a direct aider and abettor, not pursuant to the natural and
probable consequences doctrine or the felony-murder rule.3
Leslie argued, through his appointed counsel, that based on his
version of events, he did not intend to kill, and he did not know
Davis planned to shoot Nieves.
After a hearing conducted pursuant to section 1170.95,
subdivision (d)(3), the trial court denied the motion. It found that
Leslie was not convicted under the felony-murder rule or the
natural and probable consequences doctrine, and acted as an
aider and abettor with the intent to kill. Therefore, his
conviction remained valid under current law.
3 The People also argued that Senate Bill 1437 was
unconstitutional. The trial court did not deny the petition on this
basis, and Senate Bill 1437’s constitutionality is not at issue here.
4
Leslie filed a timely notice of appeal.
DISCUSSION
Leslie contends the trial court erred by relying on this
court’s opinion in his direct appeal, and—despite the fact the jury
was not instructed on the natural and probable consequences
doctrine—it could nevertheless have found him guilty of murder
based on this theory. We disagree.
1. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Cruz (2020) 46 Cal.App.5th 740, 752; People v. Verdugo
(2020) 44 Cal.App.5th 320, 323, review granted Mar. 18, 2020,
S260493; People v. Munoz (2019) 39 Cal.App.5th 738, 749–750,
763, review granted Nov. 26, 2019, S258234.)
Prior to passage of Senate Bill 1437, under the natural and
probable consequences doctrine a defendant was “liable for
murder if he or she aided and abetted the commission of a
criminal act (a target offense), and a principal in the target
offense committed murder (a nontarget offense) that, even if
unintended, was a natural and probable consequence of the
target offense.” (People v. Lamoureux (2019) 42 Cal.App.5th 241,
248; People v. Munoz, supra, 39 Cal.App.5th at p. 749, rev.gr.)
Senate Bill 1437 amended section 188 to state that malice may
not be imputed to a person based solely on his or her
participation in a crime. (§ 188, subd. (a)(3).) Thus, pursuant to
Senate Bill 1437, where the felony-murder rule is not at issue, a
5
person must act with malice to be convicted of murder. (People v.
Munoz, at p. 749.)
2. Section 1170.95’s petitioning procedure
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a felony-
murder or natural and probable consequences theory may
petition in the sentencing court for vacation of their convictions
and resentencing. A defendant is eligible for relief under section
1170.95 if he meets three conditions: (1) he must have been
charged with murder under a theory of felony murder or murder
under the natural and probable consequences doctrine, (2) must
have been convicted of first or second degree murder, and
(3) could no longer be convicted of first or second degree murder
due to changes to sections 188 and 189 wrought by Senate Bill
1437. (§ 1170.95, subd. (a).)
Evaluation of a section 1170.95 petition requires a multi-
step process: an initial review to determine the petition’s facial
sufficiency; a prebriefing, “first prima facie review” to
preliminarily determine whether the petitioner is statutorily
eligible for relief as a matter of law; and a second, postbriefing
prima facie review to determine whether the petitioner has made
a prima facie case that he or she is entitled to relief. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 897, review granted
Aug. 12, 2020, S263219; People v. Verdugo, supra, 44 Cal.App.5th
at pp. 327–330, rev.gr.; People v. Nguyen (2020) 53 Cal.App.5th
1154, 1165–1166.) If the petitioner makes such a showing, the
court must issue an order to show cause (OSC) and conduct a
hearing to determine whether to vacate the murder conviction
6
and resentence the petitioner on any remaining counts.
(§ 1170.95, subds. (c), (d); People v. Nguyen, at pp. 1165–1166.)4
At that hearing, the burden of proof is on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing. Both the People and the petitioner may rely on
the record of conviction, including an appellate opinion in the
case, and, where appropriate, may also present additional
evidence to demonstrate the petitioner is, or is not, entitled to
resentencing. (§ 1170.95, subd. (d)(3); see People v. Tarkington,
supra, 49 Cal.App.5th at pp. 899, fn. 5, 909, rev.gr.; People v.
Verdugo, supra, 44 Cal.App.5th at p. 333, rev.gr.) “If the
prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (§ 1170.95, subd. (d)(3);
People v. Nguyen, supra, 53 Cal.App.5th at p. 1166.)
3. Because Leslie was not convicted under the felony-
murder rule or the natural and probable consequences doctrine,
he is ineligible for relief
Leslie is not eligible for relief under section 1170.95
because the jury instructions conclusively show he was convicted
based on a theory—direct aiding and abetting—that survives
Senate Bill 1437’s amendments to sections 188 and 189.
“[P]otential relief under section 1170.95 extends only to those
convicted of murder by operation of the natural and probable
4
It does not appear that the trial court issued an OSC in the
instant matter, but the record shows the parties and the court
considered the hearing to be pursuant to section 1170.95,
subdivision (d)(3).
7
consequence doctrine or of felony murder. [Citation.]” (People v.
Soto (2020) 51 Cal.App.5th 1043, 1056 (Soto), review granted
Sept. 23, 2020, S263939; § 1170.95, subd. (a)(3); People v. Lee
(2020) 49 Cal.App.5th 254, 263–265, review granted July 15,
2020, S262459.) Leslie’s jury was not instructed on either the
natural and probable consequences doctrine or the felony-murder
rule; therefore, he could not have been convicted based on either
of these theories. (Soto, at p. 1055 [trial court may rely on jury
instructions when determining whether petitioner has made a
prima facie showing of entitlement to relief]; People v. Edwards
(2020) 48 Cal.App.5th 666, 674, review granted July 8, 2020,
S262481 [where jury instructions showed petitioner was not
convicted under felony-murder or natural and probable
consequences theories, he could not meet the statutory
prerequisites for filing a § 1170.95 petition]; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1138, review granted Mar. 18, 2020,
S260598 [where court file shows petitioner was convicted of
murder without instruction or argument on the felony-murder
rule or the natural and probable consequences doctrine, summary
denial would be appropriate].)
Instead, Leslie was convicted of willful, deliberate, and
premeditated murder as a direct aider and abettor. To render
that verdict, the jury necessarily determined he acted with the
intent to kill. As this court explained in its 2009 opinion: “The
instruction on murder stated that the perpetrator was guilty of
first degree murder if he acted willfully, deliberately, and with
premeditation. It further stated that ‘[t]he defendant acted
willfully if he intended to kill.’ CALCRIM No. 401 advised that,
to be guilty as an aider and abettor, Leslie had to have known
that the perpetrator intended to commit the crime, i.e., murder,
8
and ‘intended to aid and abet the perpetrator in committing the
crime.’ If a defendant knows the perpetrator intends to commit
murder, and intends to aid the perpetrator in committing the
murder, the aider and abettor necessarily intends to kill.”
(People v. Leslie, supra, B206632.)
Because the jury necessarily found Leslie acted with
express malice, he could still be convicted under current law.
Senate Bill 1437 “did not . . . alter the law regarding the criminal
liability of direct aiders and abettors of murder because such
persons necessarily ‘know and share the murderous intent of the
actual perpetrator.’ [Citations.] One who directly aids and abets
another who commits murder is thus liable for murder under the
new law just as he or she was liable under the old law.” (People
v. Lewis, supra, 43 Cal.App.5th at p. 1135, rev.gr.; People v.
Verdugo, supra, 44 Cal.App.5th at pp. 335–336, rev.gr. [petitioner
ineligible where conviction for premeditated murder required
specific intent to kill]; People v. Nguyen, supra, 53 Cal.App.5th at
p. 1164 [direct aiding and abetting theory is still viable after
passage of Sen. Bill 1437]; Soto, supra, 51 Cal.App.5th at
pp. 1056–1057, rev.gr.)
Leslie does not dispute that the prosecution relied on a
direct aiding and abetting theory at trial, and that the jury was
instructed that malice was required to find him guilty. At the
hearing on the petition, Leslie’s counsel conceded that the jury
concluded he was a direct aider and abettor. Nonetheless, Leslie
advances several arguments in support of his contention that he
is entitled to resentencing. None has merit.
Leslie hypothesizes that the jury could have convicted him
based on the natural and probable consequences doctrine, despite
the fact it was never instructed on it. He points out that
9
CALCRIM No. 520 uses the phrase “natural consequences” in its
definition of implied malice.5 From this, he argues that the jury
could have concluded he “harbored the requisite intent for
murder by committing an act, the ‘natural consequences’ of which
were dangerous to human life.”
A similar argument was rejected in Soto, supra, 51
Cal.App.5th 1043, review granted. There, the “natural
consequences” language was contained in both the implied malice
instruction and in a second degree murder instruction. (Id. at
p. 1056.) After discussing the “distinctly different concepts”
underlying aiding and abetting and the natural and probable
consequences doctrine (ibid.), the court observed that Soto’s jury
had not been instructed on any target offense upon which the
natural and probable consequences theory could have been based.
“The ‘natural consequences’ language in the instruction for
second degree murder does not transform [defendant’s] conviction
into one for murder under the natural and probable consequences
doctrine within the meaning of section 1170.95.” (Id. at
pp. 1058–1059; see People v. Edwards, supra, 48 Cal.App.5th at
p. 674, rev.gr. [fact instruction and argument included phrase
5
As provided to Leslie’s jury, CALCRIM No. 520 stated in
relevant part: “There are two kinds of malice aforethought,
express malice and implied malice. Proof of either is sufficient to
establish the state of mind required for murder. [¶] The
defendant acted with express malice if he unlawfully intended to
kill. [¶] The defendant acted with implied malice if: [¶] 1. He
intentionally committed an act; [¶] 2. The natural consequences
of the act were dangerous to human life; [¶] 3. At the time he
acted, he knew his act was dangerous to human life; [¶] AND [¶]
4. He deliberately acted with conscious disregard for human life.”
10
“natural and probable consequences” did not demonstrate
petitioner was charged or convicted under that doctrine].)
The same is true here. Leslie’s jury was not instructed on a
target crime or on the natural and probable consequences theory
of liability. The notion that the jury could have vaulted from the
single phrase “natural consequences” in the implied malice
instruction, to full consideration of a natural and probable
consequences theory upon which it was never instructed, is
fanciful. Moreover, the jury here did not rely on an implied
malice theory: it found Leslie guilty of first degree murder,
which—based on the instructions given—required a finding he
committed the murder willfully, intentionally, and with
premeditation.
In a further attempt to show his jury could have adopted a
natural and probable consequences theory, Leslie reasons that at
trial, the parties discussed whether a natural and probable
consequences instruction should be given; thus, there must have
been substantial evidence to support such an instruction; and
therefore, the jury might have convicted based on that theory.
But the conclusion does not follow from the premise.6 The salient
point is that the jury was not instructed on the doctrine,
regardless of the content of the parties’ discussions. Equally
unpersuasive is Leslie’s assertion that the “jury was not bound by
the prosecutor’s theory.” The jury was bound by the instructions,
which we presume it followed. (See, e.g., People v. Silveria and
6
In fact, during the parties’ discussion the prosecutor
averred that there was insufficient evidence of a target crime to
support a natural and probable consequences instruction. At the
hearing on the petition, Leslie’s counsel echoed that sentiment.
11
Travis (2020) 10 Cal.5th 195, 245 [court presumes jury
“understood and followed” instructions].) The instructions given
did not allow reliance on the natural and probable consequences
doctrine.7
Leslie also contends that the trial court resolved the wrong
question. In his view, the issue before the court was whether the
jury could have convicted him on a theory that is no longer valid.
In other words, he appears to assert that, if there was evidence
from which the jury could have found him guilty on a natural and
probable consequences theory in addition to a direct aiding and
abetting theory, his petition should have been granted. But
7
Leslie’s citations to People v. Barton (1995) 12 Cal.4th 186,
People v. Webster (1991) 54 Cal.3d 411, and People v. Guerra
(1985) 40 Cal.3d 377, are unavailing. The cited portion of Barton
discussed the standard for instruction on a lesser included
offense, a conceptually distinct issue from that here. (People v.
Barton, at p. 203.) In Webster, the defendant took both a key and
a vehicle from the victim, and the jury instructions did not
specify which item was the object of the robbery. To determine
whether the evidence was sufficient, the court considered
whether each item was taken by means of force and fear and
from the victim’s person or immediate presence. In this regard,
the court reasoned that it could “not uphold the robbery findings
unless we conclude there was substantial evidence to support all
the robbery theories before the jury.” (People v. Webster, at
pp. 439–443 & fn. 16.) The cited portion of Webster has no
relevance to the questions at issue here. And in Guerra, the court
instructed on both felony murder and premeditated murder; our
Supreme Court reasoned that there was “no principled way” for it
to determine which theory the jury adopted. (People v. Guerra, at
pp. 387–388.) In other words, unlike the situation here, the jury
was actually instructed on both theories.
12
based on the plain language of section 1170.95, the touchstone is
whether the petitioner could not be convicted under current law.
The People’s task, therefore, is to show the converse, that the
petitioner could be convicted of murder despite Senate Bill 1437’s
amendments to sections 188 and 189. Where a jury has already
found petitioner guilty on a theory requiring malice, this fact
necessarily proves he could be convicted of murder despite Senate
Bill 1437’s amendments. Even assuming arguendo that there
was sufficient evidence to prove guilt on a natural and probable
consequences theory, this circumstance would not detract from
the ineligibility showing.
Leslie next argues that the court erred by relying on this
court’s 2009 opinion.8 This contention fails for at least three
reasons. First, section 1170.95 expressly states that at a
subdivision (d)(3) hearing, the parties may rely on “the record of
conviction.” (§ 1170.95, subd. (d)(3).) An appellate opinion is part
of the record of conviction. (See, e.g., People v. Lewis, supra,
43 Cal.App.5th at p. 1136, fn. 7, rev.gr.; People v. Verdugo, supra,
44 Cal.App.5th at p. 333, rev.gr.; People v. Tarkington, supra,
4 Cal.App.5th at p. 899, fn. 5, rev.gr.) Second, Leslie did not
object to the trial court’s reliance on the 2009 opinion; therefore,
he has forfeited this contention. (Evid. Code, § 353, subd. (a).)
Third, even if the trial court erred, any misstep was harmless.
“[R]egardless of the trial court’s reliance on the facts in this
court’s prior opinion to explain how the malice element of murder
8 Our Supreme Court is currently considering whether
superior courts may consider the record of conviction in
determining whether a defendant has made a prima facie
showing of eligibility for relief under section 1170.95. (People v.
Lewis, S260598.)
13
may have been satisfied at [defendant’s] trial, the jury
instructions themselves demonstrate as a matter of law that
[defendant] could not make a prima facie showing that he is
entitled to relief.” (Soto, supra, 51 Cal.App.5th at p. 1055,
rev.gr.)
In sum, because the jury instructions given conclusively
demonstrate as a matter of law that Leslie was not convicted of
murder under a natural and probable consequences or felony-
murder theory, the trial court correctly denied his section 1170.95
petition. (Soto, supra, 51 Cal.App.5th at p. 1059, rev.gr.)
Because the trial court did not err, Leslie’s contention that his
due process rights were violated necessarily fails.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
DHANIDINA, J.
14