Opinion
F085234
06-30-2023
THE PEOPLE, Plaintiff and Respondent, v. LOUIS TRUMAN MAGEE, Defendant and Appellant.
Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF168256A. John W. Lua, Judge.
Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2018, appellant and defendant Louis Truman Magee was convicted by jury of the following seven felony counts: attempted murder with a premeditation allegation, stalking, making criminal threats, two counts of contempt of court for violating a protective order, assault on a peace officer, and evading a peace officer. (People v. Magee (Aug. 27, 2020, F077067) [nonpub. opn.] (Magee I).) Appellant was also convicted of one misdemeanor count of hit and run. (Ibid.) In 2020, on direct appeal, this court modified appellant's felony convictions for violation of a protective order under Penal Code section 166, subdivision (c)(4), to reflect misdemeanor convictions under section 166, subdivision (c)(1), and, on this court's own motion, ordered the trial court to correct the abstract of judgment to reflect that appellant's one-year sentence for stalking was one-third of the middle term. (Magee I, supra, F077067 .) We otherwise affirmed the judgment. (Ibid.)
We take judicial notice of the record from appellant's prior appeal and our decision in Magee I, supra, F077067. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); see, e.g., People v. Bilbrey (2018) 25 Cal.App.5th 764, 769, fn. 7 [taking judicial notice of the record in a related appeal on the court's own motion].)
All further references are to the Penal Code unless otherwise stated.
In 2022, appellant filed a petition requesting resentencing under section 1172.6, subdivision (a), formerly section 1170.95. The trial court appointed counsel to represent appellant; the prosecution filed a response to the petition; and the trial court held a hearing at which it found that appellant had not made a prima facie case for relief, set forth its reasons, and dismissed the petition. (§ 1172.6, subds. (b)((3), (c).)
Effective June 30, 2022, former section 1170.95 was renumbered to section 1172.6. (Assem. Bill No. 200 (2021-2022 Reg. Sess.) (Assembly Bill 200).) We refer to the statute herein by its present section number.
Appellant filed a timely notice of appeal.
Appellate counsel filed a brief that summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and People v. Wende (1979) 25 Cal.3d 436 (Wende).)
On February 28, 2023, this court sent an order to appellant stating his appellate counsel had filed a brief under Wende that indicated no arguable issues had been identified for appeal; previously, when an appellant filed an appeal from the denial of a section 1172.6 petition, and counsel filed a Wende brief, this court performed an independent review of the record to determine whether any error occurred; the California Supreme Court determined in Delgadillo, supra, 14 Cal.5th at pages 221- 222, that independent Wende review is not required for appeals from the denial of section 1172.6 petitions; in accordance with the procedures set forth in Delgadillo, appellant had 30 days in which to file a supplemental brief or letter raising any arguable issues he wanted this court to consider; and if we did not receive a letter or brief within that 30-day period, this court may dismiss the appeal as abandoned.
On March 9, 2023, appellant filed a supplemental brief and on March 13, 2023, appellant filed an amended supplemental brief. Appellant raises no issues that relate to the dismissal of his petition under section 1172.6, subdivision (c). The sole issue raised by appellant in his briefs relates to the citation to section 189 in various records, which he believes reflects an unauthorized sentence for attempted murder in the first degree.
We will address the unrelated issue that appellant raises, and affirm the trial court's dismissal of appellant's section 1172.6 petition.
In reviewing a section 1172.6 petition, the court may rely on "the procedural history of the case recited in any prior appellate opinion." (Id., subd. (d)(3); accord, People v. Clements (2022) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in factfinding at the prima facie stage. (People v. Clements, supra, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) The following factual and procedural summary is from the records we have judicially noticed. We summarize the factual statement from the prior appeal to provide context for the trial court's ruling and the parties' appellate arguments, and do not rely on the factual statement to resolve the issues presented in this appeal. (§ 1172.6, subd. (d)(3).)
Appellant and his then-fiancee, L.S., were together for three years before breaking up in September 2016. In January 2017, L.S. obtained a restraining order against appellant and, when her apartment lease expired that month, she moved in with her cousin, who lived next door.
On May 1, 2017, L.S. and her cousin were at home, and another family member was present. Earlier that day, appellant texted L.S. and made comments that caused her to believe he was following her. Appellant called L.S., told her he was outside, and told her he wanted her to come out. He threw a rock at the bedroom window and L.S. saw him outside driving with his headlights off, running up and down the stairs, and hiding around bushes. L.S. testified that she feared for her life because appellant had threatened over the phone to harm her and himself. L.S.'s visiting family member heard the threat over speakerphone and called 911 when appellant showed up. It was dark outside, and L.S. reported over the phone that appellant had his headlights off and she did not know where he was.
Because the entrance gate into the apartment complex was not working at the time, L.S. left the apartment to trigger the exit gate with her car so that police could enter the complex. After L.S. got into her car, appellant pulled up behind her in his car, blocking her in. He bumped the rear of her car with the front of his car and then drove toward the exit gate. Responding police officers pursued appellant after he drove off. A high speed chase ensued before being called off for safety reasons.
On May 9, 2017, L.S.'s cousin was asleep in the apartment when she heard the door jiggle and appellant call for L.S., who had by then moved out. Appellant threw rocks at the bedroom window and L.S.'s cousin called 911 after she heard a loud bang against the window. Responding officers located appellant hiding in the backseat of his car, which was backed into a parking stall and had a direct view of the apartment, including the door, windows, and stairwell. Officers located a bag in the front seat of the car that contained a large, fixed-blade butcher knife; duct tape; yellow rubber dishwashing gloves; and multiple large trash bags.
PROCEDURAL BACKGROUND
On May 25, 2017, an information was filed in the Kern Superior Court charging appellant with attempted murder with a premeditation allegation (§§ 664, 187, subd. (a), 189, subd. (a)), stalking (§ 646.9, subd. (b)), making criminal threats (§ 422), two counts of contempt of court for violating a protective order (§ 166, subd. (c)(4)), assault on a peace officer (§ 245, subd. (c)), and evading a peace officer (Veh. Code, § 2800.2), and with one misdemeanor count of hit and run (Id., § 20002, subd. (a)).
On December 21, 2017, jury trial began.
On January 18, 2018, the jury returned verdicts convicting appellant on all counts and finding the premeditation allegation attached to the attempted murder count true. The trial court sentenced appellant to an indeterminate term of life in prison with the possibility of parole for attempted premeditated murder, consecutive to a total determinate term of seven years four months as follows: the upper term of five years for assault on a peace officer, one year for stalking, eight months for the first count of violating a protective order, and eight months for evading a peace officer. The court imposed concurrent terms of three years each for making criminal threats and for the second count of violating a protective order, and a concurrent term of 180 days in jail for misdemeanor hit and run.
On direct appeal, appellant challenged his conviction for attempted premeditated murder and his two convictions for violating a protective order. (Magee I, supra, F077067.) With respect to attempted premeditated murder, appellant claimed that the trial court erred when it denied his motion for acquittal under section 1118.1 and that the jury's verdict was not supported by substantial evidence of intent to kill, commission of an overt act, or premeditation. (Magee I, supra, F077067.) With respect to violating a protective order, appellant claimed that the trial court erred when it omitted two elements from its instruction to the jury on section 166, subdivision (c)(4). (Magee I, supra, F077067.)
The People disputed appellant's entitlement to any relief from his attempted premeditated murder conviction, but conceded the instructional error under section 166, subdivision (c)(4). (Magee I, supra, F077067.)
On August 27, 2020, this court filed the nonpublished opinion resolving appellant's direct appeal. (Magee I, supra, F077067.) In that opinion, this court found no error with the trial court's denial of appellant's section 1118.1 motion and found the jury's verdict that appellant committed attempted premeditated murder supported by substantial evidence. (Magee I, supra, F077067 .) This court agreed with the parties, and found that the trial court erred when it instructed the jury on section 166, subdivision (c)(4), and that the error was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24. (Magee I, supra, F077067.) This court modified the two verdicts for felony violation of a protective order to misdemeanor convictions under section 166, subdivision (c)(1); and, on this court's own motion, ordered the trial court to correct the abstract of judgment to reflect that appellant's one-year sentence for stalking was one-third of the middle term. (Magee I, supra, F077067.) The judgment was otherwise affirmed. (Ibid.)
APPELLANT'S SECTION 1172.6 PETITION
On January 10, 2022, appellant, proceeding in pro. per., filed a petition under section 1172.6 requesting resentencing of his conviction for attempted murder and the appointment of counsel. Appellant filed a supporting declaration that consisted of a preprinted form where he checked boxes that (1) he was eligible for resentencing because a complaint, information, or indictment was filed that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could have been convicted of murder or manslaughter; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
On January 20, 2022, the trial court appointed counsel to represent appellant. On April 12, 2022, the People filed an opposition to the petition.
On September 9, 2022, the trial court held a hearing and relieved appellant's counsel of record, following appellant's motion brought pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The court appointed new counsel.
On October 13, 2022, appellant brought a second Marsden motion. The court held a hearing and denied the motion.
On October 28, 2022, the trial court held a hearing on appellant's section 1172.6 petition, found that appellant had not made a prima facie case for relief, set forth its reasons, and dismissed the petition.
On November 3, 2022, appellant filed the instant appeal.
DISCUSSION
I. Senate Bill No. 1437 and Senate Bill No. 775
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437); Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775).
Effective January 1, 2019, Senate Bill 1437 "'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, § l, subd. (f).) [¶] To further that purpose, Senate Bill 1437 added three separate provisions to the Penal Code. First, to amend the felony-murder rule, Senate Bill 1437 added section 189, subdivision (e): 'A participant in the perpetration or attempted perpetration of [qualifying felonies] 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.' ...
"Second, to amend the natural and probable consequences doctrine, Senate Bill 1437 added section 188, subdivision (a)(3) (section 188(a)(3)): 'Except [for felonymurder liability] 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.'
"Third, Senate Bill 1437 added [former] section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief under the two ameliorative provisions above." (People v. Gentile (2020) 10 Cal.5th 830, 842-843.) Two years later, the Legislature enacted Senate Bill 775, which, effective
January 1, 2022, and relevant to this appeal, amended former section 1170.95 to extend the petition process to those convicted of attempted murder or manslaughter, and reaffirmed the applicable burden of proof at a resentencing hearing. (Stats. 2021, ch. 551, § l, subds. (a), (c).) Assembly Bill 200 subsequently renumbered section 1170.95 to section 1172.6, effective June 30, 2022.
II. Section 1172.6
Section 1172.6, subdivision (a), provides:
"(a) A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter 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, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine.
"(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder.
"(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)
While not applicable herein, section 189 was amended to allow for felony-murder liability where the victim is a peace officer. (Id., subd. (f).)
The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).) After service of the petition, the prosecutor shall file and serve a response. The petitioner may file and serve a reply after the response is served. (Id., subd. (c).)
"After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1172.6, subd. (c).)
If an order to show cause is issued, "the court shall hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence...." (§ 1172.6, subd. (d)(1).)
"At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens...." (§ 1172.6, subd. (d)(3).)
III. Appellant Was Ineligible for Relief as a Matter of Law
The trial court complied with section 1172.6 by appointing counsel, requesting further briefing, conducting a hearing, finding appellant failed to make a prima facie case for relief, and providing a statement of its reasons for declining to issue an order to show cause. (Id., subds. (b)(3), (c).)
The court correctly found appellant was ineligible for resentencing as a matter of law. In determining whether a petitioner made a prima facie case for relief, the court may review the record of conviction that allows the court "to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that . . . culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process." (Lewis, supra, 11 Cal.5th at p. 971 &fn. 6.)
As previously stated, the record and opinion from a petitioner's direct appeal are part of the record of conviction. (Lewis, supra, 11 Cal.5th at p. 972.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in factfinding at the prima facie stage. (People v. Clements, supra, 75 Cal.App.5th at p. 292; Lewis, supra, at p. 972.)
The jury instructions are part of the record of conviction and may be reviewed to make the prima facie determination, because the instructions "given at a petitioner's trial may provide 'readily ascertainable facts from the record' that refute the petitioner's showing, and reliance on them to make the eligibility or entitlement determinations may not amount to 'factfinding involving the weighing of evidence or the exercise of discretion,'" which must wait to occur until after an order to show cause issues. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055; accord, People v. Williams (2022) 86 Cal.App.5th 1244, 1251-1252; People v. Offley (2020) 48 Cal.App.5th 588, 598-599.) "If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (People v. Strong (2022) 13 Cal.5th 698, 708.)
"An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.) While murder is an unlawful killing with express or implied malice aforethought (§§ 187, subd. (a), 188; accord, People v. Rangel (2016) 62 Cal.4th 1192, 1220), attempted murder requires specific intent to kill, or express malice, "'and the commission of a direct but ineffectual act toward accomplishing the intended killing'" (People v. Smith (2005) 37 Cal.4th 733, 739; accord, People v. Gonzalez (2012) 54 Cal.4th 643, 653-654). Express malice is shown when the defendant "'either desires the victim's death, or knows to a substantial certainty that the victim's death will occur.'" (People v. Houston (2012) 54 Cal.4th 1186, 1217; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
In this case, the jury was instructed that to find appellant guilty of attempted murder, it had to find that he intended to kill the victim. The jury was not instructed on any theories of imputed malice for attempted murder. Because appellant was convicted of attempted murder based on intent to kill, or express malice aforethought, and he was not convicted based on any theory of imputed malice, he was ineligible for resentencing as a matter of law.
IV. Appellant's Contentions
Appellant filed his own supplemental letter brief and amended supplemental letter brief with this court raising an issue unrelated to his section 1172.6 petition. He contends the trial court erred "in holding there are degrees of attempted murder."
First, "'[t]he purpose of section [1172.6] 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 [any] factual disputes that have already been resolved.'" (People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Second, as set forth in Magee I, supra, F077067, "attempted murder is not divided into degrees, but the sentence can be enhanced if the attempt to kill was committed with premeditation and deliberation." (People v. Gonzalez, supra, 54 Cal.4th at p. 654.) The attempted murder charge in this case included the allegation that the crime was willful, deliberate, and premeditated, pursuant to section 189, subdivision (a), and the jury found that allegation true. The punishment for attempted murder that is willful, deliberate, and premeditated is life in prison with the possibility of parole. (§ 664, subd. (a).)
To the extent that appellant seeks to challenge language in the response to his inmate grievance, included as an exhibit, that document is not a court record. To the extent appellant contends that reference to section 189 in attached court records is erroneous, that contention lacks merit for the reason set forth in the preceding paragraph. In sum, appellant's two letter briefs identify no issues entitling him to any relief in this appeal.
DISPOSITION
The court's order of October 28, 2022, dismissing appellant's section 1172.6 petition, is affirmed.
[*]Before Meehan, Acting P. J., Snauffer, J. and DeSantos, J.