Opinion
B315722
01-30-2023
THE PEOPLE, Plaintiff and Respondent, v. KHAALIQ BINNS, Defendant and Appellant.
Aaron Spolin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA286179 William C. Ryan, Judge. Affirmed.
Aaron Spolin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Khaaliq Binns appeals from an order summarily denying his petition for resentencing under Penal Code former section 1170.95, which the Legislature recently renumbered as Penal Code section 1172.6. Because the record of conviction establishes that Binns was convicted of murder, and not convicted on the basis of the natural and probable consequences doctrine or the felony murder doctrine, the court did not err. Accordingly, we affirm.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in its text (Stats. 2022, ch. 58, § 10). Although Binns refers to Penal Code section 1170.95 in his petition and on appeal, we hereafter refer to the current statutory designation for the sake of consistency. Subsequent unspecified statutory references are to the Penal Code.
FACTUAL SUMMARY
In 2006, the Los Angeles County District Attorney charged Khaaliq Binns and Travon Willis with the murder of Darren Elliott. The District Attorney further alleged that a principal personally and intentionally discharged a handgun, which caused the victim's death (§ 12022.53, subds. (d) &(e)), that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subds. (b)(1)(A) &(b)(4)), and that Binns had committed a prior serious or violent felony for purposes of the "Three Strikes" law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
The matter was tried to a jury in 2007. The court instructed the jury as to first and second degree murder (CALCRIM Nos. 520, 521), conspiracy to commit murder (CALCRIM No. 416), and direct aiding and abetting liability (CALCRIM No. 401). The court did not instruct the jury on a felony-murder theory or the natural and probable consequences doctrine.
The jury convicted defendant Khaaliq Binns of one count of first degree murder (§ 187, subd. (a)), and found true the firearm and gang enhancement allegations. In a bifurcated trial, the court found true the prior strike allegation. The court sentenced Binns to prison for 75 years to life. We affirmed the judgment in June 2010. (People v. Binns (June 30, 2010, B208701) [nonpub. opn.].)
In March 2021, Binns, with the assistance of counsel, filed a petition for resentencing under section 1172.6. Binns argued that he has stated a prima facie showing that he is entitled to relief because his petition met the requirements under section 1172.6 and that the evidence at trial did not establish that he "was the actual killer or intended to kill anyone."
The District Attorney filed an opposition to the motion arguing that the record of Binns's conviction establishes that Binns was convicted of first degree murder on a theory other than felony murder or the natural and probable consequences doctrine.
On August 17, 2021, the court denied the petition. The court explained: "The jury instructions given at [appellant's] trial, which are part of the court's file in this case and undisputed by both parties, demonstrate that [appellant] was prosecuted and convicted of first degree murder under a direct aider and abettor theory of murder liability. Specifically, the court instructed the jury on aiding and abetting (CALCRIM No. 401), evidence of an uncharged conspiracy to commit murder (CALCRIM No. 416), murder with malice aforethought (CALCRIM No. 520), and first and second degree murder (CALCRIM No. 521). The court did not instruct the jury on felony murder or the natural and probable consequences theory." The court concluded: "Because the record of conviction demonstrates that [Binns] was not convicted of murder under the felony murder rule or under the natural and probable consequences theory, but rather, as a direct aider and abettor, he is not entitled to relief under section [1172.6] as a matter of law."
Defendant filed a timely notice of appeal.
DISCUSSION
A defendant convicted of murder may file a petition under section 1172.6 to have his conviction vacated and be resentenced, if he "could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).) Pursuant to the referenced statutory amendments, section 188 now requires proof of malice in all murder convictions, with an exception for the felony-murder doctrine. The statute further provides that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) The effect of these amendments was to "eliminate[ ] natural and probable consequences liability for first and second degree murder." (People v. Gentile (2020) 10 Cal.5th 830, 849 (Gentile).)
When a defendant files a facially sufficient petition for resentencing under section 1172.6, the trial court must determine whether the petitioner has made a prima facie showing for relief. (§ 1172.6, subd. (c).) Generally, when evaluating whether a petitioner has made the requisite showing,"' "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." '" (People v. Lewis (2021) 11 Cal.5th 952, 971.) The court may, however, deny an otherwise sufficient petition for failure to make a prima facie case if the record of conviction shows as a matter of law that the defendant is ineligible. (People v. Flores (2022) 76 Cal.App.5th 974, 987.) Thus, "if the record shows that the jury was not instructed on either the natural and probable consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a matter of law." (People v. Harden (2022) 81 Cal.App.5th 45, 52 (Harden); accord, People v. Cortes (2022) 75 Cal.App.5th 198, 205 [where jury was not instructed on any theory of liability for murder that required that malice be imputed to him, he is ineligible for resentencing under section 1172.6]; People v. Offley (2020) 48 Cal.App.5th 588, 599 ["if the jury did not receive an instruction on the natural and probable consequences doctrine, the jury could not have convicted the defendant on that basis, and the petition should be summarily denied"].)
Here, the jury was instructed that murder requires a finding of malice aforethought and, as Binns conceded below, the court did not instruct the jury in Binns's case on either the natural and probable consequences or felony-murder doctrines. Although the court instructed the jury that it could find Binns guilty of murder based on the theory of aiding and abetting, the aiding and abetting instruction required the jury to find that Binns was a direct aider and abettor; that is, that he "knew that the perpetrator intended to commit the crime" of murder and "intended to aid and abet the perpetrator in committing the crime." The instruction did not permit the jury to find Binns guilty as an aider and abettor under the natural and probable consequences doctrine. (See Gentile, supra, 10 Cal.5th at p. 848 ["Senate Bill [No.] 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought"]; People v. Coley (2022) 77 Cal.App.5th 539, 546 [theory of direct aiding and abetting remains a valid theory after Senate Bill No. 1437].)
The court's instruction on the theory of conspiracy also required the jury to find that Binns acted with malice. The jury was required to find that a "defendant intended to agree and did agree with the other defendant to commit murder" (as defined to require malice aforethought) and "that defendant and the other alleged member of the conspiracy intended that one or more of them would commit murder." (See People v. Medrano (2021) 68 Cal.App.5th 177, 185 [to prove a conspiracy to commit an offense, the prosecution must show that the conspirators intended" 'to commit the elements of that offense' "].)
Because the jury was instructed as to the requirement of malice as an element of murder and was not instructed as to the natural and probable consequences doctrine or the felony murder doctrine, the record of conviction establishes that Binns is ineligible for relief under section 1172.6 as a matter of law. (See Harden, supra, 81 Cal.App.5th at p. 52; Cortes, supra, 75 Cal.App.5th at p. 205.) Accordingly, the court did not err in denying Binns's petition without issuing an order to show cause or holding an evidentiary hearing.
DISPOSITION
The order denying Binns's petition for resentencing is affirmed.
WE CONCUR: CHANEY, J., BENDIX, J.