Filed 9/2/20 P. v. Harris CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B300929
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA015108-01)
v.
DA’TON VON HARRIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Connie R. Quinones, Judge. Affirmed.
Robert L. S. Angres, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________
Da’ton Von Harris appeals from a postjudgment order
summarily denying his petition for resentencing under Penal
Code section 1170.95.1 No arguable issues have been identified
following review of the record by Harris’s appointed appellate
counsel or by Harris in his supplemental letter brief to this court.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A jury in 1992 convicted Harris of first degree murder
(§ 187, subd. (a)) and attempted murder. The trial court
sentenced Harris to an indeterminate state prison term of 26
years to life. We affirmed Harris’s conviction on appeal. (People
v. Harris (Sept. 23, 1993, B069509) [nonpub. opn.].)
On March 1, 2019 Harris, representing himself, filed a form
petition/declaration in superior court to vacate his conviction and
to be resentenced in accordance with recent statutory changes
relating to accomplice liability for murder. Harris requested, and
the superior court appointed, an attorney to represent Harris.
The People filed an opposition to the petition. On June 28,
2019 the superior court summarily denied the petition for
resentencing, finding Harris ineligible for sentencing relief under
section 1170.95.
DISCUSSION
1. Senate Bill No. 1437 and the Right To Petition To Vacate
Certain Prior Convictions for Murder
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, amended
the felony murder rule and eliminated the natural and probable
1 Statutory references are to this code.
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consequences doctrine as it relates to murder through
amendments to sections 188 and 189. New section 188,
subdivision (a)(3), provides, “Except 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.”
New section 189, subdivision (e), in turn, provides with
respect to a participant in the perpetration or attempted
perpetration of a felony listed in section 189, subdivision (a), in
which a death occurs—that is, as to those crimes that provide the
basis for the charge of first degree felony murder—that the
individual 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.”
Senate Bill 1437 also permits, through new section 1170.95,
an individual convicted of felony murder or murder under a
natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill 1437’s changes to the definition
of the crime. The petition must include a declaration by the
petitioner that he or she is eligible for relief under this section,
the superior court case number and year of the petitioner’s
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conviction and a statement whether the petitioner requests the
appointment of counsel. (§ 1170.95, subd. (b)(1); see People v.
Verdugo (2020) 44 Cal.App.5th 320, 326-327, review granted
Mar. 18, 2020, S260493 (Verdugo).)2
If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a two-step process for
the court to determine if an order to show cause should issue:
“‘The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent the
petitioner. The prosecutor shall file and serve a response . . . and
the petitioner may file and serve a reply . . . . If the petitioner
makes a prima facie showing that he or she is entitled to relief,
the court shall issue an order to show cause.’” (Verdugo, supra,
44 Cal.App.5th at p. 327.)
Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra,
44 Cal.App.5th at p. 327.) At the hearing the prosecution has the
burden of proving beyond a reasonable doubt that the petitioner is
2 The Supreme Court in Verdugo, supra, S260493 ordered
briefing deferred pending its disposition of People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598.
The Court limited briefing and argument in People v. Lewis to the
following issues: “(1) May superior courts consider the record of
conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code
section 1170.95? (2) When does the right to appointed counsel
arise under Penal Code section 1170.95, subdivision (c)?”
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ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The
prosecutor and petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.
(See People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review
granted Mar. 18, 2020, S260598.)
2. The Superior Court Properly Ruled Harris Did Not Make
the Required Prima Facie Showing of Entitlement to
Relief
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, we appointed counsel to represent
Harris on appeal. After reviewing the record, counsel filed a brief
raising no issues. On July 8, 2020 we notified Harris he had
30 days to submit a brief or letter raising any grounds of appeal,
contentions or arguments he wanted the court to consider. We
received a handwritten, one-page supplemental brief on July 21,
2020 in which Harris argued that he was eligible for relief
because he was “clearly and unmistakably convicted” under the
natural and probable consequences doctrine.
Based on its consideration of Harris’s petition, the People’s
opposition and our decision affirming his conviction, the superior
court properly concluded Harris was ineligible for relief under
section 1170.95 as a matter of law. As we explained when
rejecting Harris’s argument concerning instructional error: “The
jury was instructed on the liability of aiders and Abettors . . . .”
“The prosecutor did not argue that the defendant aided and
abetted Lamont Jones in committing one ‘target’ crime and that
the murder and attempted murder committed by Lamont were
the natural and probable consequences of that original crime;
rather, the prosecutor proceeded on the theory that the target
crimes were indeed murder and attempted murder. . . .” “There
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was no evidence presented, and no argument made, that
appellant intended to aid and abet offenses different than those
committed by Lamont Jones. [¶] Thus, the evidence in this case
did not raise any issue requiring the jury [to] consider the natural
consequence doctrine.” (People v. Harris, supra, B069509.)
Because no cognizable legal issues have been raised by
Harris’s appellate counsel or by Harris, the order denying the
section 1170.95 petition must be affirmed. (See People v. Cole,
supra, 52 Cal.App.5th at p. 1040; see also People v. Serrano
(2012) 211 Cal.App.4th 496, 503; see generally People v. Kelly
(2006) 40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d
436, 441-442.)
DISPOSITION
The postjudgment order denying Harris’s petition is
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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