NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Case No. VCR194365)
Defendant Maurice Jordan appeals from the denial of his petition for resentencing pursuant to Penal Code section 1170.95 and Senate Bill No. 1437 (2017-2018 Reg. Sess.). His counsel filed an opening brief asking that this court conduct an independent review of the record for arguable issues—i.e., those that are not frivolous, as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel also informed defendant that he had the right to file a supplemental brief on his own behalf, but defendant declined to do so. We conclude there are no meritorious issues and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
The underlying facts were discussed in detail in our unpublished opinion affirming Jordan's convictions in his direct appeal. (People v. Jordan (May 17, 2011, A126859), [nonpub. opn.] (Jordan).) We here recite only the facts pertinent to this appeal, drawing heavily from our earlier opinion. --------
After a jury trial, defendant was convicted of one count of second degree murder and one count of being a felon in possession of a firearm, based on an incident involving himself, his brother Marco Glaude, and victim Roderick Anderson. (Jordan, supra, A126859 at p. 1.) Defendant and Anderson engaged in a physical fight after Anderson or one of Anderson's friends made what defendant considered to be a disrespectful comment about defendant's girlfriend. (Id. at pp. 2-3.) Although the eyewitness testimony was conflicting as to whether defendant or Glaude fired the shots that killed Anderson, the prosecution's theory at trial was that Glaude shot Anderson after defendant ordered Glaude to get defendant's gun and kill Anderson, thus making defendant liable as an aider and abettor. (Id. at pp. 4-5, 8.)
Consistent with the prosecution's theory and CALCRIM Nos. 400 and 401, the court instructed the jury that defendant could be liable either as the actual perpetrator of the homicide or as an aider an abettor of the " 'perpetrator who directly committed the crime.' " (Jordan, supra, A126859 at p. 9.) The court further informed the jury: " 'To prove that the defendant is guilty of a crime based upon aiding or abetting that crime, the People must prove that: One, the perpetrator committed the crime; two, the defendant knew that the perpetrator intended to commit the crime; three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and three[sic], the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to and does, in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime.' " (Ibid.)
On January 14, 2009, defendant filed a petition for re-sentencing pursuant to section 1170.95 and Senate Bill No. 1437, claiming that he was prosecuted "under a theory of felony murder or murder under the natural and probable consequences doctrine," and that he could no longer be "convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019." After briefing and several continuances, the trial court denied the petition, finding that defendant had not made a prima facie showing that he was entitled to relief.
Defendant's counsel filed a Wende brief requesting that we independently review the record to determine whether it contains any arguable issues for appeal. Our review establishes that there are no meritorious issues to be argued.
"Senate Bill 1437 was enacted to 'amend 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).) Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds the aforementioned section 1170.95, which allows those 'convicted of felony murder or murder under a natural and probable consequences theory . . . [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 . . . . ' (§ 1170.95, subd. (a).)" (People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).)
Defendant is not entitled to relief under section 1170.95 for the simple reason that he was not convicted of felony murder or murder under the doctrine of natural and probable consequences. Instead, he was prosecuted and convicted as one who directly aided and abetted Anderson's murder, in that he " 'specifically intend[ed] to and d[id], in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime.' " (Jordan, supra, A126859 at p. 9.) The trial evidence established that defendant had the requisite intent to kill and, by ordering Glaude to get defendant's gun and kill Anderson, was a " 'major participant in the underlying felony who acted with reckless indifference to human life.' " (Martinez, supra, 31 Cal.App.5th at 723; Jordan, at pp. 3, 6, 11.)
Having examined the record to ensure that defendant receives effective appellate review (Wende, supra, 25 Cal.3d 436), we affirm the order denying his petition.
The judgment is affirmed.
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________