People v. King CA3 ( 2023 )

Filed 6/13/23 P. v. King CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C097221
Plaintiff and Respondent, (Super. Ct. No. 12F08209)
v.
JERRY LEE KING,
Defendant and Appellant.
Defendant Jerry Lee King appeals the trial court’s denial of his petition for
resentencing under Penal Code section 1172.6.1 Counsel filed a brief raising no arguable
issues under People v. Delgadillo (2022) 14 Cal.5th 216 or People v. Wende (1979) 25
Cal.3d 436 and requesting that we exercise our discretion to review the entire record for
1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022,
the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch.
58, § 10.) Defendant filed his petition under former section 1170.95, but we will cite to
the current section 1172.6 throughout this opinion.
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arguable issues on appeal. We notified defendant that he had 30 days in which to file a
supplemental brief raising any argument he wanted this court to consider. In his
supplemental brief, defendant invites this court to independently review the facts of his
case, arguing that they fail to establish beyond a reasonable doubt that he acted with
malice aforethought or intent to kill. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, a jury found defendant guilty of first degree murder (§ 187, subd. (a)) and
found true that he personally used a firearm. (§ 12022.53, subds. (b)-(d).) The trial court
sentenced defendant to state prison for 50 years to life. We affirmed the judgment in
2015. (People v. King (May 28, 2015, C076545) [nonpub. opn.].)
In April 2022, defendant filed a petition for resentencing under section 1172.6.
The trial court appointed counsel and the parties submitted briefing. In October 2022, the
trial court denied defendant’s petition, finding he was ineligible for relief as a matter of
law because the jury was not instructed on a theory of murder that is now invalid
pursuant to the changes to sections 188 and 189 implemented by Senate Bill No. 1437
(Reg. Sess. 2017-2018) (Senate Bill 1437). (Stats. 2018, ch. 1015, § 1(f).)
Defendant timely appealed.
DISCUSSION
A. Legal background
Senate Bill 1437, which became effective on January 1, 2019, “amend[ed] 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(f).)
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
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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.)
Senate Bill 1437 also added section 1172.6, which allows those convicted of
attempted murder under the natural and probable consequences theory to petition the trial
court to vacate the conviction and resentence the defendant. (§ 1172.6, subd. (a).) “If the
petitioner makes a prima facie showing that the petitioner is entitled to relief, the court
shall issue an order to show cause.” (§ 1172.6, subd. (c).)
The prima facie inquiry under section 1172.6 subdivision (c) is “limited.” (People
v. Lewis (2021) 11 Cal.5th 952, 971.) The court “ ‘ “takes petitioner’s factual allegations
as true and makes a preliminary assessment regarding whether the petitioner would be
entitled to relief if his or her factual allegations were proved.” ’ ” (Ibid.) Although the
court may rely on the record of conviction (including a prior appellate court opinion) in
determining whether defendant has made a prima facie showing, the court “should not
engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ”
(Id. at p. 972.)
B. Analysis
Defendant argues in his supplemental brief that he is entitled to relief because the
evidence establishes that he did not act with malice aforethought. Defendant argues that
he was a first responder, performed CPR on the victim, and called 911. In addition,
defendant argues that the trajectory of the bullet that killed the victim showed the victim
was tackling defendant at the time of the killing.
We decline defendant’s invitation to reweigh the evidence that the jury already
considered when it found him guilty of first degree murder. (See People v. Lewis, supra,
11 Cal.5th at p. 972 [although a court should consider the record of conviction in
determining whether defendant has made a prima facie showing of relief, it should not
weigh evidence].) Given that defendant has offered no evidence disputing the trial
court’s finding that the jury instructions established that the jury could not have found
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defendant guilty of murder based on a theory of vicarious liability, we find no error in the
trial court’s holding that defendant was ineligible for relief.
DISPOSITION
The trial court’s order is affirmed.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
EARL , J.
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