People v. Jones CA2/4 ( 2021 )

Filed 1/21/21 P. v. Jones 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B304219
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA337608)
v.
LAWRENCE JONES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Eleanor J. Hunter, Judge. Affirmed.
Randy S. Kravis, 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, Michael R. Johnsen, Supervising Deputy Attorney General,
and Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.
This is the second time this case is before us. On December 2,
2009, appellant Lawrence Jones was convicted of one count of first-
degree murder and three counts of attempted murder. At trial, the
prosecution argued theories of premeditation and intentional aiding and
abetting, as well as a theory of natural and probable consequences. The
jury found that the murder and attempted murders were committed
with premeditation. On appellant’s appeal from the judgment of
conviction, this court affirmed the judgment. (People v. Jones (May 15,
2012, B226771) [nonpub. opn.] (Jones I).)
On June 27, 2019, appellant, through counsel, filed a petition for
resentencing under section 1170.95 of the California Penal Code,1
arguing that he was entitled to relief because the prosecution argued a
theory of natural and probable consequences at trial. The trial court
ordered informal briefs from both parties. After receiving responses
from both parties, the trial court summarily denied appellant’s petition
for failure to set forth a prima facie basis for relief under section
1170.95.
Appellant now appeals, contending that the trial court erred in
concluding that his petition failed to state a prima facie basis for relief,
due to the possibility that the jury, in convicting appellant, might have
misunderstood the instructions it received regarding premeditation.
We disagree and affirm.
1 All further section references are to the Penal Code.
2
FACTUAL BACKGROUND2
I. The Murder
On July 30, 2007, Shantell Martinez was killed in a shooting on
West View Street. Martinez was a friend of Rokeshia Quinn,
appellant’s former girlfriend. Appellant was a member of the Rollin’
60’s Crips gang. Quinn was a member of the Rimpau Boulevard Crips,
a subset of the West Boulevard Crips. At the time of the murder, there
was no conflict between the Rollin’ 60s and the West Boulevard Crips.
Quinn and appellant had argued violently earlier in the day, and
appellant physically abused and threatened Quinn while driving her
around Los Angeles in his Jaguar. During a struggle with appellant in
the car, Quinn damaged appellant’s car radio. Appellant stopped at a
car stereo store to have the radio fixed, where Quinn called her friend
Chardae Johnson. Johnson’s father and stepfather were “shotcallers”
for the Rimpau Boulevard Crips, and Johnson considered herself a
member of the West Boulevard Crips. Johnson and Jaythia
Muhammad, another friend of Quinn’s, left in the latter’s car to pick
Quinn up, but were unable to find her.
Later, when appellant stopped at a Sprint Store to have his cell
phone repaired, Quinn again called Johnson to come pick her up.
Johnson and Martinez, along with two other women, travelled to the
Sprint Store in Martinez’s car, where Johnson confronted appellant.
Following a physical and verbal altercation between appellant and
2 Our summary of the facts is based on our prior opinion.
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Johnson at the Sprint Store, Quinn left with Johnson and the other
women in Martinez’s car.
They stopped at a gas station, where they met with Muhammad
and another friend, Laniece Dalcour. Johnson called appellant and told
him she intended to have someone fight him. After this, the women
traveled to West View Street, where Johnson and Muhammad lived.
Johnson attempted but failed to convince her cousin Chris to fight
appellant. Johnson then called appellant again and told him to come to
West View Street to fight someone.
In anticipation of the fight, a group of people gathered in the
parking lot behind the apartment building where Johnson lived.
Appellant eventually arrived at West View Street in his Jaguar. The
various witnesses reported that two other vehicles, a Chevy Avalanche
and a Ford SUV, arrived at the same time as appellant. Some
witnesses reported that appellant was alone in his car, while others
reported that two or three others exited the car with him. Some
witnesses also reported that people exited the other two cars. In
statements to the police, Johnson said she recognized two of these
people as “BG,” a friend of appellant’s, and “Johnny,” who had been in
prison with her son’s father. In other statements to the police, Quinn,
Dalcour, and Adrian Wade, one of the people who had gathered to see
the fight, said that the people who arrived with appellant were
members of the Rollin’ 60s.
After appellant exited the Jaguar, Muhammad approached him
with a 13-inch aluminum baseball bat. Muhammad testified in court
that she called appellant a “punk bitch,” and appellant responded, “[o]n
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6-0. It’s nothing. I’ll fight anybody.” She explained that “[o]n 6-0” was
a challenge, referring to the Rollin’ 60s; however, on cross-examination,
she said his statement was “I’m 6-0, it’s nothing,” meaning he was not
afraid to fight.
Muhammad swung her baseball bat at appellant, and they began
to fight. As many as eight or nine other women joined the fight to assist
Muhammad. In Johnson’s statement to the police, she said that as
appellant was being beaten, he called out, “[c]uz, on 60. Y’all really
gonna let these bitches jump me? This is how West Boulevards get
down.”
The witnesses then heard gunshots. Quinn and Johnson both
reported that two unidentified gunmen had opened fire. Jaime Garcia
witnessed the event through the window of his friend’s house on West
View Street. He saw two gunmen who left in appellant’s Jaguar after
the shooting. Muhammad, Dalcour, and Wade were shot and injured,
though all survived. Martinez was shot in the head and died three
hours after the shooting.
At trial, appellant disputed that he was a member of the Rollin’
60s, stating instead that he was only an associate of the gang, and
never committed any crimes for their benefit. The prosecution’s
criminal gang expert, Detective John Flores, stated his opinion, based
on appellant’s tattoos, social circle, and past admissions, that appellant
was a member of the Rollin’ 60s. In response to a hypothetical question
based on the facts of the case, he stated his opinion that the efforts of
Quinn’s friends to rescue her from appellant could be seen as
disrespectful, such that a member of the Rollin’ 60s would be expected
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to retaliate. He also testified that it is common for gang members to
call for back-up from other members when exacting such retaliation.
DISCUSSION
I. Petitions Under Section 1170.95
By amending sections 188 (defining malice) and 189 (defining the
degrees of murder), Senate Bill No. 1437 (S.B. 1437), effective January
1, 2019, changed “the felony murder rule and the natural and 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).)3
In addition, S.B. 1437 added section 1170.95 (Stats. 2018, ch.
1015, § 4), which allows a person convicted of felony murder, or murder
3 In amending section 188, S.B. 1437 added the following provision:
“Except as stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) S.B. 1437 also added
the following as subdivision (e) of section 189: “A participant in the
perpetration or attempted perpetration of a felony listed in subdivision (a) in
which a death occurs is liable for murder only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not
the actual killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless indifference to
human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e);
Stats. 2018, ch. 1015, § 3.)
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under the natural and probable consequences doctrine, to “file a petition
with the court that sentenced the petitioner to have the petitioner’s
murder 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 or murder
under the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of first degree or second degree murder
following a trial . . . . [¶] (3) The petitioner could not be convicted of
first or second degree murder because of changes to Section 188 or 189.”
(§ 1170.95, subd. (a).)
Subdivision (b)(1) of section 1170.95 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 ascertained by the court.
(§ 1170.95, subd. (b)(2).)
Subdivision (c) provides: “The court shall review the petition and
determine if the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section. If the petitioner
has requested counsel, the court shall appoint counsel to represent the
petitioner. The prosecutor shall file and serve a response within 60
days of service of the petition and the petitioner may file and serve a
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reply within 30 days after the prosecutor response is served. These
deadlines shall be extended for good cause. If the petitioner makes a
prima facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.” (§ 1170.95, subd. (c).)
Appellate courts have interpreted subdivision (c) as providing for
two stages of prima facie review. At the first stage, before receiving
briefs from the parties, the trial court must evaluate whether “the
petitioner falls within the provisions of this section,” or whether
petitioner is eligible for relief under section 1170.95 as a matter of law.
At the second stage, after receiving briefs, the trial court must evaluate
whether the petitioner makes a prima facie showing that he or she is
entitled to relief. (People v. Verdugo (2020) 44 Cal.App.5th 320, 328,
rev. granted, S260493, Mar. 18, 2020 (Verdugo); People v. Lewis (2020)
43 Cal.App.5th 1128, 1140, rev. granted, S260598, Mar. 18, 2020;
People v. Tarkington (2020) 49 Cal.App.5th 892, 897–898, rev. granted,
S263219, Aug. 12, 2020.)
The remainder of the statute sets forth the procedure for
responding to, and the hearing on, the order to show cause, as well as
post-hearing matters.
II. Summary Denial
Appellant contends that the trial court erred in summarily
denying his petition for failure to state a prima facie basis for relief. He
argues that because the trial court received briefs from both parties, it
implicitly concluded that appellant was eligible for relief as a matter of
law at the first stage of prima facie review. He asserts that at the
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second stage, a court must find that a petition states a prima facie case
if the allegations therein would support a ruling in the petitioner’s
favor. (Verdugo, supra, 44 Cal.App.5th at p. 328.) Also, he asserts that
the trial court was entitled only to rely on “readily ascertainable facts
from the record.” (People v. Drayton (2020) 47 Cal.App.5th 965, 980
(Drayton).) Appellant contends that in determining whether there was
sufficient evidence to support a conviction under a theory of direct
aiding and abetting theory, the trial court made an improper
“factfinding” determination, rather than relying only on facts readily
ascertainable from the record.
We disagree, and conclude that the trial court correctly
determined that appellant was ineligible for relief as a matter of law. It
relied on facts readily ascertainable from the record of conviction in
making this determination.
At trial before appellant’s conviction, the trial court instructed the
jury using CALCRIM No. 520 on murder and CALCRIM No. 521 on
premeditation, deliberation, and willfulness. CALCRIM No. 521 stated:
“The defendant is guilty of first degree murder if the People have
proved that he acted willfully, deliberately, and with premeditation.”
The instruction defined the terms “willfully,” “deliberately,” and “with
premeditation” as follows: “The defendant acted willfully if he intended
to kill. The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the
consequences, decided to kill. The defendant acted with premeditation
if he decided to kill before committing the act that caused death.”
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The jury was also instructed with CALCRIM No. 403, on the
natural and probable consequences doctrine, and CALCRIM No. 401, on
direct aiding and abetting. CALCRIM No. 401 stated that someone aids
and abets a crime if he or she knows the perpetrator’s unlawful purpose
and he or she intends to, and does in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator’s commission of that crime.
Appellant argues that because the jury was instructed pursuant to
CALCRIM No. 403, and because the prosecution discussed the natural
and probable consequences doctrine at trial, he is eligible for relief
under section 1170.95. However, at trial, the jury was also instructed
on, and the prosecution also argued, theories of direct aiding and
abetting and premeditated murder, and the jury convicted defendant of
first degree premeditated murder. Despite this, appellant asserts that
the record does not show that the jury convicted on a theory of direct
aiding and abetting, or that the jury found he acted with premeditation.
He asserts that the jury instructions delivered at trial, considered as a
whole, are confusing, such that the jury could have construed the word
“defendant” in CALCRIM No. 521 to apply to direct aider and abettor
liability only, and convicted him of premeditated murder under a theory
of natural and probable consequences because the shooters acted with
premeditation, even if appellant did not.
However, as we explained in our opinion on appellant’s direct
appeal from the judgment of conviction, CALCRIM No. 521 defines the
terms “willfully,” “deliberately,” and “with premeditation” only with
reference to “the defendant.” (Jones I, supra, at p. 14.) Therefore, this
court concluded that “under the instructions, by convicting defendant of
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first degree murder, and finding true the allegation that the attempted
murders were willful, deliberate and premeditated, the jury necessarily
concluded that defendant acted with the intent to kill, and with
premeditation and deliberation.” (Ibid.)
Appellant argues that because this court’s opinion in Jones I
decided a different legal issue than the one in this case, and because the
trial court relied on the opinion to make a factual determination rather
than a legal one, neither the doctrine of collateral estoppel nor the law
of the case doctrine made that opinion binding on the trial court in this
case. However, whether or not the trial court was bound by that
opinion does not affect whether it was entitled to rely on that opinion in
making its determination. In Verdugo, the court explained that “[a]
court of appeal opinion, whether or not published, is part of the
appellant’s record of conviction. [Citations.] Accordingly, it was proper
for the superior court to consider this court’s opinion in People v.
Barraza [(2008)] B194415, which affirmed Verdugo’s convictions . . . in
determining whether he had made a prima facie showing of eligibility
for relief under section 1170.95 or whether he was ineligible for relief as
a matter of law.” (Verdugo, supra, 44 Cal.App.5th at p. 333, citing
People v. Woodell (1998) 17 Cal.4th 448, 456.) Furthermore, in Drayton,
the court explained that in proceedings under section 1170.95, trial
courts may rely on facts readily ascertainable from the record of
conviction, and that “if the record ‘contain[s] facts refuting the
allegations made in the petition . . . the court is justified in making a
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credibility determination adverse to the petitioner.’ [Citation.]”
(Drayton, supra, 47 Cal.App.5th at p. 980.)
Appellant’s argument that the trial court implicitly found him
eligible for relief because it received briefs from the parties is also
mistaken. The Verdugo court explained that a trial court may still
make a determination as to whether a petitioner is eligible for relief
under section 1170.95 even after its first prima facie review of a
petition. “In response to the petition the prosecutor may be able to
identify additional material from the record of conviction not accessible
to, or reviewed by, the court during its first prima facie determination
(for example, jury instructions) that establish the petitioner is not
eligible for relief. In a reply the petitioner, represented by counsel, may
rebut the prosecutor’s claim of ineligibility.” (Verdugo, supra, 44
Cal.App.5th at p. 330, fn. 9.)
In light of the Verdugo and Drayton courts’ analyses, we conclude
that it was not improper for the trial court in this case to determine, on
the basis of appellant’s conviction as stated in this court’s earlier
opinion, that appellant was ineligible for relief as a matter of law.
//
//
//
//
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DISPOSITION
The order is affirmed.4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
4 Appellant has filed a habeas corpus petition challenging the degree of
his murder conviction, arguing that a conviction for first degree murder is
made unlawful by the alleged uncertainty as to the jury’s understanding of
the instructions. Given the resolution of this appeal, appellant’s habeas
corpus petition is denied.
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