Opinion
B328833
11-27-2023
THE PEOPLE, Plaintiff and Respondent, v. RAYNON E. JONES, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. TA067856, Allen J. Webster, Jr., Judge. Affirmed.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MORI, J.
Raynon E. Jones appeals from an order denying his petition for resentencing under Penal Code section 1172.6. His appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and Jones filed a supplemental brief. We review the contentions Jones raised in his supplemental brief and affirm the order.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10). We hereafter cite to section 1172.6. All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
The following summary is taken from our opinion resolving Jones's direct appeal to provide background and context. (See Delgadillo, supra, 14 Cal.5th at p. 222, fn. 2.)
At approximately 11:00 p.m. on November 30, 2002, outside of the Martinez residence in Compton, Jose Martinez and Elida Rodarte entered Martinez's parked car. After Martinez started the engine, but before they were able to leave, a dark gray car driven by Jones came to a screeching halt in the middle of the street behind Martinez's car.
Jones and another individual, Michael Pearson, exited the car and approached Martinez's vehicle. Pearson, armed with a handgun, ran up to the driver's side of the car and fired several shots at Martinez. Jones, holding an AK assault-type rifle, walked up to the rear driver's side and shot at Martinez. The two continued to shoot as they returned to their car and then drove away. Martinez died as a result of the attack. Rodarte was wounded but recovered.
Pearson was jointly tried and convicted with Jones but was not a party to the appeal filed by Jones.
Two eyewitnesses identified Jones as one of the shooters. Jones was subsequently arrested. Jones admitted he drove the gray vehicle but claimed Pearson was the sole shooter.
The shootings were gang motivated. Jones was a member of the Campanella Park Piru, and the gang's principal rival was the Compton Varrio 155. The shootings occurred within the territory of the Compton Varrio 155. (People v. Jones (Apr. 21, 2005, B171442) [nonpub. opn.].)
B. Procedural Background
In 2003, a jury convicted Jones of the first degree murder (§ 187, subd. (a)) of Jose Martinez and found true the allegation that during the commission of the murder, Jones personally and intentionally discharged a handgun that proximately caused great bodily injury and death to Martinez (§ 12022.53, subd. (d).) The jury also convicted Jones of the willful, deliberate, and premeditated attempted murder of Elida Rodarte Sanchez (§§ 664, 187, subd. (a)) and found true that in the commission of the attempted murder, Jones personally and intentionally discharged a handgun that caused great bodily injury to Sanchez (§ 12022.53, subd. (d).)
The trial court sentenced Jones to an aggregate term of 75 years to life. In 2005, a panel of this court affirmed Jones's convictions in People v. Jones (Apr. 21, 2005, B171442) [nonpub. opn.].)
In 2022, Jones filed a petition for resentencing under former section 1170.95, now section 1172.6. The People opposed the petition on two grounds: (1) Jones was ineligible for relief as a matter of law because his jury was not instructed on the theories of natural and probable consequences or felony murder and (2) Jones was prosecuted as a principal who acted with actual malice. The People attached this court's opinion from Jones's direct appeal, as well as the jury instructions and verdicts from the underlying trial. Jones, through a brief filed by appointed counsel, noted the jury was instructed, pursuant to CALJIC No. 8.11, that for purposes of murder, "'malice' may be either express or implied" and then asserted, without elaboration, that whether the jury convicted Jones based on a theory of "imputed malice" is therefore an "open question."
We note that CALJIC No 8.11 defines "express" and "implied" malice without suggesting that malice may be imputed to a defendant. (People v. Cortes (2022) 75 Cal.App.5th 198, 205; People v. Coley (2022) 77 Cal.App.5th 539, 547-548.)
The trial court denied the motion on the grounds that Jones failed to demonstrate prima facie entitlement to relief. At the hearing on the petition, the court observed no jury instructions were given regarding natural and probable consequences or felony murder and that Jones was convicted as a shooter in this case.
Jones timely appealed.
DISCUSSION
A. Delgadillo Procedures and Supplemental Briefing
We appointed counsel to represent Jones, and Jones's appointed attorney filed a brief raising no issues and requesting that this court proceed pursuant to Delgadillo, supra, 14 Cal.5th 216. This court advised Jones of his right to file a supplemental brief (see id. at pp. 231-232), and Jones did so. We evaluate the arguments set forth in that supplemental brief. (Id. at p. 232 ["If the defendant subsequently files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion"].)
B. Relevant Law Regarding Section 1172.6 Relief
Under the ameliorative changes to the law relating to accomplice liability for murder effected by Senate Bill No. 1437 (Stats. 2018, ch. 1015), malice must be proved to convict a principal of murder under the narrowed felony-murder rule set forth in revised section 189, subdivision (e). Malice may not be imputed based solely on an individual's participation in a crime (§ 188, subd. (a)(3)). Thus, the natural and probable consequences doctrine can no longer serve as a basis for finding a defendant guilty of murder. (People v. Gentile (2020) 10 Cal.5th 830, 842-843; see People v. Reyes (2023) 14 Cal.5th 981, 984.) As amended by Senate Bill No. 775 (Stats. 2021, ch. 551, § 2), effective January 1, 2022, Senate Bill No. 1437's changes to the law of murder expressly apply to individuals convicted of attempted murder and voluntary manslaughter.
"Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended, " now codified in section 1172.6. (People v. Strong (2022) 13 Cal.5th 698, 708; Lewis (2021) 11 Cal.5th 952, 957, 959.) "If [a] petitioner ma[kes] a prima facie showing for relief, the trial court [is] required to issue an order to show cause for an evidentiary hearing." (People v. Hurtado (2023) 89 Cal.App.5th 887, 891; § 1172.6, subd. (c).) The court may deny the petition if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at pp. 970-972.)
Where a trial court denies a section 1172.6 petition based on the failure to make a prima facie case for relief, our review is de novo. (See People v. Williams (2022) 86 Cal.App.5th 1244, 1251.)
C. Jones Has Failed To Demonstrate Error In The Trial Court's Order Denying Section 1172.6 Relief
In his supplemental brief, Jones contends the trial court erred in denying his resentencing petition for several reasons.
First, Jones asserts he is eligible for resentencing relief, because at the time of his arrest, he denied shooting or killing anyone and solely admitted to being the driver of the vehicle. However, "[t]he mere filing of a [prior Penal Code] section 1170.95 petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings." (See People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Here, the jury found that Jones not only committed premeditated and attempted premeditated murder, but that he also personally and intentionally discharged a firearm that inflicted great bodily injury and/or death on the victims. Nothing in the jury's verdicts, considered with the instructions given, suggested malice could have been imputed to Jones solely on his participation in the underlying crimes. (People v. Cortes, supra, 75 Cal.App.5th at p. 205.) To the contrary, CALJIC No. 8.66 defining attempted murder, requires proof of express malice, and CALJIC No. 8.67 defining an attempt to commit willful, deliberate, and premeditated murder reinforces the requirement that the People prove express malice (a clear intent to kill).
Second, Jones argues we should conduct DNA testing and/or fingerprinting on the weapon used in the shootings and that such testing would establish his innocence. He also argues we should review his previous Franklin motion and related documents and consider his low risk of recidivism and explanation for the behavior leading to his arrest. However, these challenges are not cognizable in a section 1172.6 motion, and therefore outside the scope of this appeal. (See generally, People v. Farfan, supra, 71 Cal.App.5th at p. 947; People v. Strong, supra, 13 Cal.5th at pp. 713-714; cf. Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
Under People v. Franklin (2016) 63 Cal.4th 261, a juvenile offender may file a motion to develop a record of mitigating circumstances for an eventual youth offender parole hearing. (See In re Cook (2019) 7 Cal.5th 439, 451-452 [discussing proper procedures for Franklin hearing].) Jones was 24 years old at the time of the instant shootings.
Third, and finally, we reject Jones's contention that appellate counsel was ineffective for filing a no-merit brief. There is no constitutional right to effective assistance of counsel in section 1172.6 proceedings (Delgadillo, supra, 14 Cal.5th at pp. 226-227), and our high court in Delgadillo approved the procedures followed by counsel in this case (id. at pp. 227-233.) The trial court here properly determined from the record of conviction that Jones's conviction was not based on a theory of imputed malice and Jones has failed to demonstrate otherwise. (Delgadillo, supra, 14 Cal.5th at p. 232; People v. Gonzalez (2021) 12 Cal.5th 367, 410 [it is the appellant's burden to affirmatively demonstrate error.)
Discerning no basis for disturbing the trial court's decision, we affirm the order denying resentencing relief.
DISPOSITION
The order denying appellant's postconviction petition for resentencing under section 1172.6 is affirmed.
We concur: COLLINS, Acting P.J. ZUKIN, J.